     Case: 15-10005      Document: 00513228151         Page: 1    Date Filed: 10/12/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-10005
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         October 12, 2015
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

CHRISTINA MORENO,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:14-CR-169-1


Before JOLLY, BENAVIDES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Christina Moreno pleaded guilty to one charge of being a felon in
possession of a firearm and received a within-guidelines sentence of 120
months in prison and a three-year term of supervised release. She contends
that her sentence was both procedurally and substantively unreasonable.
Many of her arguments are centered on the district court’s denial of the
Government’s U.S.S.G. § 5K1.1 motion.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-10005

      Under the discretionary sentencing system established by United States
v. Booker, 543 U.S. 220 (2005), district courts should consider both the
Sentencing Guidelines and the sentencing factors set forth in 18 U.S.C.
§ 3553(a) when choosing a defendant’s sentence. United States v. Mares, 402
F.3d 511, 518-19 (5th Cir. 2005). Preserved claims of sentencing error are
reviewed for abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007).
      First, Moreno argues that the district court improperly calculated her
guidelines range, made erroneous factual findings concerning an agreement
she had with the Government, and made several errors in connection with its
disposition of the § 5K1.1 motion. Because these specific arguments were not
presented to the district court, they are reviewed for plain error only. See
United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009). To
establish plain error, a defendant must show an error that is clear or obvious
and that affects her substantial rights. Puckett v. United States, 556 U.S. 129,
135 (2009). If she makes such a showing, we have discretion to correct the
error but will do so only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Id.
      Moreno has not met this standard. The record shows that the district
court adopted the PSR, which correctly calculated Moreno’s guidelines range.
The record also refutes Moreno’s assertion that the district court found she
perfected an agreement with the Government that resulted in her being
charged with a firearms offense instead of a drug-related crime.
      Insofar as Moreno argues that the district court’s denial of the § 5K1.1
motion was flawed because the court did not explicitly consider certain factors
and did not give enough weight to the Government’s evaluation of her
helpfulness, these arguments are unavailing. District courts have “almost
complete discretion to deny” a § 5K1.1 motion.          United States v. Cooper,



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                                 No. 15-10005

274 F.3d 230, 248 (5th Cir. 2001). We lack discretion to review the denial of a
motion for downward departure unless the denial was due to the district court’s
mistaken belief that it could not grant the motion. Cooper, 274 F.3d at 248; see
also United States v. Tuma, 738 F.3d 681, 691 (5th Cir. 2013), cert. denied, 134
S. Ct. 2875 (2014).
      The record does not indicate that the district court mistakenly believed
that it could not grant the Government’s § 5K1.1 motion. Rather, the record
reflects that the district court knew of its authority to grant the motion but
concluded that a downward departure was not warranted under the facts and
circumstances of the case. Consequently, we will not consider the district
court’s denial of the motion. See Cooper, 274 F.3d at 248. Moreno has not
shown that the district court committed procedural error, plain or otherwise,
at sentencing.
      Next, Moreno argues that her sentence is substantively unreasonable
because the district court gave too much weight to the prosecutor’s decision to
indict her on the firearms offense and because the district court should not
have relied upon this factor to deny the § 5K1.1 motion. “Appellate review for
substantive reasonableness is highly deferential because the sentencing court
is in a better position to find facts and judge their import under the § 3553(a)
factors with respect to a particular defendant.” United States v. Scott, 654 F.3d
552, 555 (5th Cir. 2011). Sentences, whether inside or outside the advisory
guidelines range, are reviewed for reasonableness in light of the § 3553(a)
factors. Gall, 552 U.S. at 51.
      When, as is the case here, the district court imposes a sentence within
the applicable guidelines range, that sentence is presumptively reasonable,
and “[t]he presumption is rebutted only upon a showing that the sentence does
not account for a factor that should receive significant weight, it gives



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                                 No. 15-10005

significant weight to an irrelevant or improper factor, or it represents a clear
error of judgment in balancing sentencing factors.” United States v. Cooks, 589
F.3d 173, 186 (5th Cir. 2009). “A defendant’s disagreement with the propriety
of the sentence imposed does not suffice to rebut the presumption of
reasonableness that attaches to a within-guidelines sentence.” United States
v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010).
      Moreno’s arguments concerning the district court’s reasons for denying
the § 5K1.1 motion are but a thinly-disguised challenge to that denial. As
explained earlier, we will not review this denial because it was not grounded
in the mistaken belief that the court could not grant the motion. See Cooper,
274 F.3d at 248.     This argument does not suffice to show that Moreno’s
sentence is substantively unreasonable.
      Finally, insofar as Moreno complains that her sentence is substantively
unreasonable because the district court should not have considered her
uncharged conduct and the effect of the prosecutor’s charging decision on her
sentence, this argument is unavailing because these factors are relevant to the
nature and circumstances of Moreno’s offense as well as her history and
characteristics. Thus, under § 3553(a)(1), the district court acted properly by
considering these factors. Because Moreno has shown only a disagreement
with the appropriateness of the within-guidelines sentence chosen by the
district court, she has not shown that her sentence is substantively
unreasonable. See Ruiz, 621 F.3d at 398.
      AFFIRMED.




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