     Case: 10-30968     Document: 00511548401         Page: 1     Date Filed: 07/22/2011




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

                                                                            FILED
                                                                            July 22, 2011
                                     No. 10-30968
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

BEATO REYNOSO, also known as Juan Carlos Acevedo Rodriguez, also known
as Hommy S. Martinez, also known as Juan Diaz,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 3:10-CR-115-1


Before WIENER, PRADO and OWEN, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Beato Reynoso pleaded guilty to illegal reentry
following deportation after conviction of an aggravated felony, in violation of 8
U.S.C. § 1326(a), (b)(2). The district court sentenced him to 70 months in prison,
which was at the bottom of the advisory guidelines range of 70 to 87 months in
prison. In this appeal, Reynoso argues that the district court erred when it
denied his motion to continue the sentencing hearing and when it failed


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 10-30968    Document: 00511548401       Page: 2    Date Filed: 07/22/2011

                                   No. 10-30968

adequately to explain the sentence imposed. Reynoso also claims that his
sentence is substantively unreasonable because it fails to reflect the extent of his
cooperation with the government.
       In support of his motion to continue, Reynoso focused on his past
cooperation, which was deemed not substantial by the government, to argue that
his future cooperation would be significant and that, as a result, the government
would file a motion for downward departure under U.S.S.G. §5K1.1. Because the
court had no evidentiary basis on which to support a determination that
Reynoso’s continued cooperation would result in future substantial assistance,
the sentencing court cannot be said to have abused its discretion in denying
Reynoso’s motion to continue. United States v. Peden, 891 F.2d 514, 519 (5th
Cir. 1989). Neither can Reynoso show that he was prejudiced by the district
court’s denial of his motion simply because, had he continued to cooperate with
the government following his sentencing hearing, the government might have
filed a post-sentencing motion to reduce his sentence. See FED. R. CRIM. P. 35(b);
United States v. Lopez, 26 F.3d 512, 516-17 (5th Cir. 1994); Peden, 891 F.2d at
519.
       Reynoso also asserts that the district court failed adequately to explain
why it rejected his arguments for a lesser sentence based on his cooperation with
the government. He further contends that his sentence is unreasonable because
it fails to reflect his cooperation with the government. As Reynoso failed to raise
these claims in the district court, we review them for plain error. See United
States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009). To show plain
error, the appellant must identify a forfeited error that is clear or obvious and
that affects his substantial rights. Puckett v. United States, 129 S. Ct. 1423,
1429 (2009). If the appellant makes such a showing, we have the discretion to
correct the error, but only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Id.



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   Case: 10-30968    Document: 00511548401         Page: 3    Date Filed: 07/22/2011

                                  No. 10-30968

      Following United States v. Booker, 543 U.S. 220 (2005), sentences are
reviewed for reasonableness in light of the sentencing factors in § 3553(a).
United States v. Mares, 402 F.3d 511, 519-20 (5th Cir. 2005). Pursuant to Gall
v. United States, 552 U.S. 38, 51 (2007), we first examine whether the district
court committed any procedural errors, “such as . . . failing to adequately explain
the chosen sentence.” Gall, 552 U.S. at 51. “The district court must adequately
explain the sentence to allow for meaningful appellate review and to promote the
perception of fair sentencing.” Mondragon-Santiago, 564 F.3d at 360 (internal
quotation marks and citation omitted).
      In the instant case, almost the entire sentencing hearing was devoted to
Reynoso’s assertions regarding his cooperation with the Government, with the
district court specifically indicating that it would consider them. Furthermore,
in imposing the sentence, the district court stated that “the guidelines
determinations reasonably address the real conduct of the Defendant that
underlies his crime, achieves the goals of Section 3553(a) and provides an
appropriate sentence.” Thus, the record in the instant case reflects that the
district court listened to and considered Reynoso’s arguments but simply found
the circumstances insufficient to warrant a lesser sentence. See Rita v. United
States, 551 U.S. 338, 347 (2007); United States v. Rodriguez, 523 F.3d 519, 525
(5th Cir. 2008). The court’s failure to give additional reasons does not constitute
clear or obvious error.
      If the district court’s decision is procedurally sound, we will then “consider
the   substantive   reasonableness     of    the   sentence     imposed    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 also Rita, 551 U.S. at 347 (2007) (holding that an
appellate court may apply a presumption of reasonableness to a sentence within
a properly calculated guidelines range). Reynoso contends that his sentence is



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                                  No. 10-30968

substantively unreasonable because it fails to reflect his cooperation with the
government.
      As already discussed, the district court heard and considered Reynoso’s
arguments for a more lenient sentence based on his cooperation with the
government but rejected them, determining that a within-guidelines sentence
was appropriate in light of the Guidelines, the § 3553(a) factors, and the policy
statements. Reynoso’s argument is nothing more than a request for this court
to re-weigh the § 3553(a) factors. “[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). The fact that this court “might reasonably have concluded that
a different sentence was appropriate is insufficient to justify reversal of the
district court.” Gall, 552 U.S. at 51.
      Furthermore, Reynoso’s sentence is presumed reasonable because it was
within the guidelines range. See Alonzo, 435 F.3d at 554. A defendant’s
disagreement with the propriety of his sentence does not suffice to rebut the
presumption of reasonableness that attaches to a within-guidelines sentence.
Cf. United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008)
(upholding the presumption of reasonableness of a within-guidelines sentence
where the appellant argued that the Guidelines overstated the seriousness of his
offense and his motive for returning justified a sentence below the guidelines
range); Rodriguez, 523 F.3d at 526 (concluding that various arguments for a
non-guidelines sentence presented “no reason to disturb” the presumption of
reasonableness).
      AFFIRMED.




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