     Case: 17-40868      Document: 00514642950         Page: 1    Date Filed: 09/14/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 17-40868
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        September 14, 2018
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

JUAN JOSE ACEVEDO-AZUA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:16-CR-583-1


Before DENNIS, CLEMENT, and OWEN, Circuit Judges
PER CURIAM: *
       Juan Jose Acevedo-Azua pleaded guilty to conspiracy to import
methamphetamine and importation of methamphetamine. The district court
denied his requests for a downward variance and a sentence commensurate to
that imposed on his codefendant. Acevedo-Azua now argues that the difference
between his sentence and that of his codefendant constitutes an unwarranted
disparity and the district court erred by failing to explain why it granted 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-40868

codefendant a downward variance but declined to grant him one from the
already-reduced range following a substantial assistance departure.           He
additionally argues that the district court failed to weigh the 18 U.S.C. 3553(a)
sentencing factors. The Government moves for summary affirmance.
      Summary disposition in lieu of the traditional appellate process is
“necessary and proper” in “cases where time is truly of the essence” or where
“the position of one of the parties is clearly right as a matter of law so that
there can be no substantial question as to the outcome of the case, or where, as
is more frequently the case, the appeal is frivolous.” Groendyke Transp., Inc.
v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). Here, the issue presented is
neither fully foreclosed nor frivolous. See United States v. Heard, 709 F.3d 413,
435 (5th Cir. 2013).
      Although this court ordinarily reviews a sentence for procedural and
substantive reasonableness, see Gall v. United States, 552 U.S. 38, 51 (2007),
the parties assert that this court should review Acevedo-Azua’s sentence for
plain error. Yet, Acevedo-Azua arguably preserved his unwarranted disparity
argument at sentencing. See United States v. Rodriguez, 523 F.3d 519, 526 n.1
(5th Cir. 2008). We need not resolve the issue because Acevedo-Azua has not
shown that the district court’s sentence was unreasonable under the ordinary
standard of review. See United States v. Becerril-Pena, 714 F.3d 347, 349 n.4
(5th Cir. 2013).
      The record reflects that the district court listened to and considered
Acevedo-Azua’s arguments in favor of a lower sentence and rejected them. This
was sufficient. See, e.g., Rita v. United States, 551 U.S. 338, 356-57 (2007).
Acevedo-Azua has not shown error, plain or otherwise, in the explanation of
the sentence. See id.




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                                 No. 17-40868

      Moreover, Acevedo-Azua’s sentence is entitled to a rebuttable
presumption of reasonableness. See United States v. Simpson, 796 F.3d 548,
557 (5th Cir. 2015).   The district court’s rejection of Acevedo-Azua’s request
for a sentence commensurate with that of his codefendant is not unreasonable
in light of its findings that (1) Acevedo-Azua’s statement that he did not
knowingly transport drugs was inconsistent with his statements at
rearraignment, (2) Acevedo-Azua’s codefendant, unlike Acevedo-Azua, fully
accepted responsibility for her offense, and (3) Acevedo-Azua was no
“neophyte” with respect to the drug conspiracy. See, e.g., United States v.
Cisneros-Gutierrez, 517 F.3d 751, 766-67 (5th Cir. 2008). In sum, Acevedo-
Azua’s mere disagreement with the weight that the district court gave the
sentencing factors, including the need to avoid unwarranted disparities, does
not demonstrate that his sentence is substantively unreasonable. See Gall v.
United States, 552 U.S. 38, 51 (2007).
      The judgment of the district court is AFFIRMED. The Government’s
motion for summary affirmance is DENIED. Its alternative motion for an
extension of time to file its brief is DENIED as moot.




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