     Case: 18-50752       Document: 00514915625         Page: 1     Date Filed: 04/15/2019




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

                                     No. 18-50752                              FILED
                                   Summary Calendar                        April 15, 2019
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

ANTONIO MURO, JR.,

                                                  Defendant - Appellant


                   Appeals from the United States District Court
                         for the Western District of Texas
                             USDC No. 4:17-CR-359-2


Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Antonio     Muro, Jr., challenges the             66-month      within-Sentencing
Guidelines sentence imposed after he pleaded guilty to aiding and abetting
possession, with intent to distribute, 100 kilograms or more, but less than 1000
kilograms, of marihuana, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C.
§ 2. He asserts: his sentence is substantively unreasonable; and, in that
regard, the district court should instead have imposed the statutory minimum


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 18-50752

sentence of 60 months, which was also within the advisory Guidelines
sentencing range. Along that line, Muro contends the court should have taken
into account the lower likelihood of recidivism in the light of his age, his
difficult childhood, his steady work history, and the needs of his family.
Although Muro acknowledges his offense was serious, he claims the crime’s not
involving violence or a weapon meant there was no need for an additional six
months to protect the public. According to Muro, the time above the statutory
minimum was imposed solely for the purpose of punishment.
      Although post-Booker, the Guidelines are advisory only, the district
court must avoid significant procedural error, such as improperly calculating
the Guidelines sentencing range. Gall v. United States, 552 U.S. 38, 48–51
(2007). If no such procedural error exists, a properly preserved objection to an
ultimate sentence is reviewed for substantive reasonableness under an abuse-
of-discretion standard. Id. at 51; United States v. Delgado-Martinez, 564 F.3d
750, 751–53 (5th Cir. 2009). In that respect, for issues preserved in district
court, its application of the Guidelines is reviewed de novo; its factual findings,
only for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751,
764 (5th Cir. 2008).
      Muro, however, did not object to his imposed sentence; therefore, we
instead review only for plain error. See United States v. Peltier, 505 F.3d 389,
391–92 (5th Cir. 2007). Under that standard, Muro must show a forfeited plain
(clear or obvious) error that affected his substantial rights. Puckett v. United
States, 556 U.S. 129, 135 (2009). If he does so, we have the discretion to correct
the reversible plain error, but should do so only if it “seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings”. Id. (Muro
acknowledges application, in this instance, of this narrow standard of review,
see, e.g., Peltier, 505 F.3d at 391–92, but preserves for possible further review



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                                 No. 18-50752

a challenge to applying the plain-error standard when no objection to the
reasonableness of the sentence is made after it is imposed.)
      Muro’s within-Guidelines sentence is entitled to a presumption of
reasonableness. See United States v. Rashad, 687 F.3d 637, 644 (5th Cir.
2012). His speculative belief the court relied solely on punishment to reach the
66-month sentence, combined with his general assertion that his favorable
personal factors outweighed the seriousness of the offense and his
disagreement with the court’s weighing of the 18 U.S.C. § 3553(a) factors, does
not show the requisite clear or obvious error, especially in the light of the
above-described presumption. See United States v. Cooks, 589 F.3d 173, 186
(5th Cir. 2009).
      AFFIRMED.




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