     Case: 12-40233       Document: 00512400370         Page: 1     Date Filed: 10/08/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          October 8, 2013
                                     No. 12-40233
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

MARTIN ORTEGON,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:10-CR-787-1


Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM:*
       Martin Ortegon appeals the 52-month within-guidelines sentence imposed
following his guilty plea conviction to aiding and abetting the making of false
statements to a federal firearms licensee during the acquisition of a firearm. See
18 U.S.C. §§ 2, 924(a)(1)(A). Ortegon argues that the district court imposed a
procedurally and substantively unreasonable sentence because it did not grant
him a downward departure for his substantial assistance pursuant to U.S.S.G.



       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 12-40233

§ 5K1.1, p.s. Further, he contends that the sentence is otherwise procedurally
and substantively unreasonable.
      To the extent that Ortegon challenges the district court’s refusal to
downwardly depart from the guidelines range, the issue is not reviewable. See
United States v. Burleson, 22 F.3d 93, 94-95 (5th Cir. 1994). This court may,
however,    consider    whether    Ortegon’s    within-guidelines     sentence    is
unreasonable. See United States v. Nikonova, 480 F.3d 371, 375 (5th Cir. 2007),
abrogation on other grounds recognized by United States v. Delgado-Martinez,
564 F.3d 750, 752 (5th Cir. 2009). Pursuant to Gall v. United States, 552 U.S.
38, 49-51 (2007), we consider the procedural and substantive reasonableness of
the sentence imposed. See Delgado-Martinez, 564 F.3d at 752-53.
      To the extent that Ortegon contends that his sentence is procedurally
unreasonable in failing to account for the Government’s purported
unconstitutional motive in refusing to file a motion for a downward departure,
because he did not raise this issue in the district court, plain error review
applies, as Ortegon concedes. See United States v. Mondragon-Santiago, 564
F.3d 357, 361 (5th Cir. 2009). For Ortegon to prevail on plain error review, the
error must be clear or obvious and affect substantial rights. Puckett v. United
States, 556 U.S. 129, 135 (2009). If these requirements are met, this court has
the discretion to correct the error, but only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id. Ortegon has not
established error, plain or otherwise. See Wade v. United States, 504 U.S. 181,
185-86 (1992); United States v. Aderholt, 87 F.3d 740, 742 (5th Cir. 1996);
Puckett, 556 U.S. at 135.
      As Ortegon concedes, review of his substantive reasonableness challenge
also is limited to plain error. See United States v. Peltier, 505 F.3d 389, 392 (5th
Cir. 2007). Although no 18 U.S.C. § 3353(a) factor required the district court to
consider Ortegon’s cooperation, the record reflects that the district court
nonetheless heard and considered Ortegon’s arguments for a reduced sentence

                                         2
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                                  No. 12-40233

based on his cooperation but ultimately declined to impose a sentence below the
guidelines range. See United States v. Fraga, 704 F.3d 432, 440 (5th Cir. 2013).
Ortegon has shown no error, plain or otherwise, with respect to his argument
that the sentence is procedurally or substantively unreasonable because it fails
to account for his cooperation with the Government. See id.; Puckett, 556 U.S.
at 135. Further, he has not rebutted the presumption of reasonableness that
attaches to his within-guidelines sentence. See Mondragon-Santiago, 564 F.3d
at 360; United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
      Finally, the district court did not err in not giving Ortegon credit for time
spent in federal custody. It is not authorized to do so. See United States v.
Dowling, 962 F.2d 390, 393 (5th Cir. 1992).
      Ortegon’s motion to take judicial notice is GRANTED. The district court’s
judgment is AFFIRMED.




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