     Case: 10-40340 Document: 00511358507 Page: 1 Date Filed: 01/24/2011




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

                                                 FILED
                                                                          January 24, 2011
                                     No. 10-40340
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

MARIA DEL SOCORRO CANO,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                             USDC No. 7:09-CR-1445-1


Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
       Maria Del Socorro Cano appeals her sentence following her guilty plea
conviction for illegal reentry into the United States in violation of 8 U.S.C.
§ 1326. Cano was sentenced within her advisory guidelines range to 41 months
of imprisonment and two years of supervised release. Cano challenges the
procedural and substantive reasonableness of her sentence.
       After United States v. Booker, 543 U.S. 220 (2005), sentences are reviewed
for reasonableness. Gall v. United States, 552 U.S. 38, 46 (2007). This court

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-40340

first examines whether the district court committed any significant procedural
error, “such as . . . failing to adequately explain the chosen sentence.” Id. at 51.
If the district court’s decision is procedurally sound, this court will then consider
the substantive reasonableness of the sentence under an abuse-of-discretion
standard. Id. “[A] sentence within a properly calculated Guideline range is
presumptively reasonable.” United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.
2006); see Gall, 552 U.S. at 51 (recognizing that appellate courts may, but are
not required to, apply a presumption of reasonableness to sentences within
properly calculated guidelines range). The district court’s factual findings are
reviewed for clear error and its application of the Guidelines is reviewed de novo.
United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). A district
court’s factual finding is not clearly erroneous if it is plausible in light of the
record as a whole. Id.
      Cano contends that the district court committed reversible procedural
error by failing to adequately explain its sentence. According to Cano, the
district court did not provide adequate reasons for rejecting her argument for a
below-guidelines sentence based on the mitigating circumstances surrounding
her 2006 Texas conviction for indecency with a child, the mitigating
circumstances surrounding her illegal reentry into the United States, and the
overrepresentation of her criminal history under the Guidelines. The record
reflects that the district court considered each of those arguments and concluded
that the factors under 18 U.S.C. § 3553(a) were satisfied by a sentence of 41
months of imprisonment, the bottom of Cano’s advisory guidelines range. The
district court did not err with respect to the adequacy of its explanation of the
sentence. See Rita v. United States, 551 U.S. 338, 356 (2007); United States v.
Rodriguez, 523 F.3d 519, 525-26 (5th Cir. 2008).
      Regarding substantive reasonableness, Cano contends that her sentence
is not entitled to a presumption of reasonableness because U.S.S.G. § 2L1.2, the
guideline applicable to violations of § 1326, was not the result of empirical

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                                  No. 10-40340

evidence or study. As acknowledged by Cano, that argument is foreclosed. See
United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert. denied, 130 S. Ct.
378 (2009). Thus, the presumption of reasonableness applies to her within-
guidelines sentence. See Alonzo, 435 F.3d at 554.
      Cano contends that her sentence is substantively unreasonable because
(1) the district court did not account for her family circumstances and
responsibilities, which was a mitigating factor that should have received
significant weight, and (2) overemphasized her 2006 indecency conviction by
focusing on the fact of her conviction without considering her delineation of the
mitigating circumstances surrounding the conviction.          The district court
considered and was not persuaded by Cano’s contentions for a lower sentence
based on her family circumstances and responsibilities. Additionally, the district
court did not clearly err in rejecting her assertions concerning the circumstances
of her 2006 indecency offense. “[T]he sentencing judge is in a superior position
to find facts and judge their import under § 3553(a) with respect to a particular
defendant.” United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir.
2008). Cano has not shown that her sentence was substantively unreasonable,
nor has she rebutted the presumption of reasonableness applicable to her
sentence. See United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir.
2008); Alonzo, 435 F.3d at 554.
      AFFIRMED.




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