     Case: 10-40270 Document: 00511442697 Page: 1 Date Filed: 04/12/2011




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

                                                 FILED
                                                                            April 12, 2011
                                     No. 10-40270
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

VICENTE RODRIGUEZ-RODRIGUEZ,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 5:09-CR-814-1


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Vicente Rodriguez-Rodriguez pleaded guilty to illegal reentry into the
United States following deportation. See 8 U.S.C. § 1326(a). Rodriguez claims
that his 63-month prison sentence, which was the bottom of the properly
calculated guidelines range, is unreasonable and that he should have been
sentenced below the guidelines range as he requested. Rodriguez asserts that
the district court abused its discretion by considering factors that did not



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-40270 Document: 00511442697 Page: 2 Date Filed: 04/12/2011

                                    No. 10-40270

comport with the sentencing goals of 18 U.S.C. § 3553(a) and by failing to
consider factors that did.
      Reasonableness review is bifurcated; if a review of the sentence for
procedural error reveals none, the appellate court then determines whether the
sentence is substantively reasonable. Gall v. United States, 552 U.S. 38, 51
(2007).   If error has been preserved, an appellate court reviewing for
reasonableness “merely asks whether the trial court abused its discretion.” Rita
v. United States, 551 U.S. 338, 351 (2007). A court commits procedural error if
it “fail[s] to calculate (or improperly calculat[es]) the Guidelines range [or] fail[s]
to consider the § 3553(a) factors.”           Gall, 552 U.S. at 51.       Substantive
reasonableness is determined in light of the § 3553(a) factors. Id. at 49-50.
      Rodriguez contends that the district court improperly focused on two
concerns that were “outside the § 3553(a) factors” in considering Rodriguez’s
request for a downward variance. First, Rodriguez contends that the court
discounted his request for a variance because it found that the request was not
“unusual” since Rodriguez’s attorney had “argued for a variance in every case”
that day, and that another assistant federal public defender “ha[d] done the
same thing.” Second, Rodriguez contends that the district court refused to
consider a downward variance because the Government had declined to move for
an additional downward departure for acceptance of responsibility and thus, “to
vary [would] intrude in the Government’s decision-making process.”
      Rodriguez’s contentions raise concerns about whether the district court’s
sentence took into account improper factors.           While “this court applies a
rebuttable    presumption     of   reasonableness     to   a   properly    calculated,
within-guidelines sentence such as” Rodriguez’s, see United States v. Cooks, 589
F.3d 173, 186 (5th Cir. 2009), even where the sentence was based on U.S.S.G. §
2L1.2, see United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.
2009), that presumption may be rebutted “upon a showing that the sentence
does not account for a factor that should receive significant weight, it gives

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                                  No. 10-40270

significant weight to an irrelevant or improper factor, or it represents a clear
error of judgment in balancing sentencing factors.” Cooks, 589 F.3d at 186.
However, Rodriguez has not shown that the district court gave “significant
weight” to improper factors. See id. Rather, the district court made clear that
it rejected Rodriguez’s request for a downward variance because of Rodriguez’s
personal characteristics and criminal history, and it was not improper for the
district court to consider Rodriguez’s prior felony drug conviction. See U.S.S.G.
§ 2L1.2; United States v. Duhon, 541 F.3d 391, 397 (5th Cir. 2008). Further, the
court stated that it understood that it was “not bound by the guidelines” and
could vary as it saw fit, regardless of the absence of a motion by the Government
for a downward departure for acceptance of responsibility.
      Rodriguez has not rebutted the presumption of reasonableness of his
within-guidelines sentence. See Cooks, 589 F.3d at 186. Accordingly, Rodriguez
has failed to offer sufficient reason for disturbing the district court’s sentence
selection. See id.
      AFFIRMED.




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