     Case: 13-40891      Document: 00512722989         Page: 1    Date Filed: 08/05/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-40891
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                           August 5, 2014
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff−Appellee,

versus

JHONNY JAVIER MADRID-URQUIA,

                                                 Defendant−Appellant.



                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 1:12-CR-1156-1




Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM: *


       Jhonny Javier Madrid-Urquia appeals the sentence imposed on his


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-40891

conviction of being an alien found unlawfully in the United States after having
been deported following an aggravated-felony conviction. He contends that his
sentence does not adequately account for the considerations under U.S.S.G.
§ 5K2.12 and is greater than necessary to satisfy the sentencing goals of
18 U.S.C. § 3553(a). The district court sentenced Madrid-Urquia within his
guideline range to forty-seven months of imprisonment.
      According to Madrid-Urquia, the district court failed adequately to con-
sider the circumstances of his flight from Honduras and his reasons for return-
ing to the United States. To the extent Madrid-Urquia argues that the court
erred by failing to depart downward pursuant to § 5K2.12, we lack jurisdiction
to review the argument. See United States v. Alaniz, 726 F.3d 586, 627 (5th
Cir. 2013).
      A challenge to the substantive reasonableness of a sentence based on the
§ 3553(a) factors is ordinarily reviewed under an abuse-of-discretion standard.
Gall v. United States, 552 U.S. 38, 51 (2007). But Madrid-Urquia’s challenge
to the substantive reasonableness of his sentence is reviewed for plain error
because he did not object, in the district court, to the sentence as substantively
unreasonable. See United States v. Heard, 709 F.3d 413, 425 (5th Cir.) (stating
that request for below-guideline sentence did not preserve issue of substantive
reasonableness), cert. denied, 134 S. Ct. 470 (2013). Because the sentence is
within the advisory range, it is presumptively reasonable. See United States
v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008). The presumption of
reasonableness “is rebutted only upon a showing that the sentence does not
account for a factor that should receive significant weight, it gives significant
weight to an irrelevant or improper factor, or it represents a clear error of judg-
ment in balancing sentencing factors.” United States v. Cooks, 589 F.3d 173,
186 (5th Cir. 2009).



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                                 No. 13-40891

      The district court heard Madrid-Urquia’s arguments for a lower sentence
but determined that forty-seven months was appropriate. “[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); see Gall, 552 U.S. at 51 (“The
fact that the appellate court might reasonably have concluded that a different
sentence was appropriate is insufficient to justify reversal of the district
court.”). Madrid-Urquia has not shown sufficient reason to disturb the pre-
sumption of reasonableness. See Gomez-Herrera, 523 F.3d at 565-66. The
sentence is not an abuse of discretion, much less plain error. Gall, 552 U.S.
at 51; Heard, 709 F.3d at 425.
      The judgment is AFFIRMED.




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