     Case: 12-41319       Document: 00512352186         Page: 1     Date Filed: 08/23/2013




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

                                                                            FILED
                                                                          August 23, 2013
                                     No. 12-41319
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

REYNALDO VEGA,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:11-CR-1446-1


Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
       Reynaldo Vega appeals the 210-month within-guidelines sentence imposed
following his guilty plea conviction for receiving child pornography. Vega first
argues that the district court erred in its resolution of his motion for a downward
departure. We, however, lack jurisdiction to review the district court’s refusal
to depart downwardly. See United States v. Sam, 467 F.3d 857, 861 (5th Cir.
2006).



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-41319    Document: 00512352186     Page: 2   Date Filed: 08/23/2013

                                 No. 12-41319

      Next, Vega contends that his sentence is substantively unreasonable
because he was only a “passive participant” in viewing child pornography on a
personal computer and because the need to avoid unwarranted sentence
disparities among similarly situated defendants, as mandated by 18 U.S.C.
§ 3553(a)(6), supports a below-guidelines sentence. The district court was aware
of these allegedly mitigating circumstances but concluded that a sentence of 210
months was appropriate based on all of the § 3553(a) sentencing factors.
Further, Vega has failed to show that any sentencing disparity was unwarranted
given that he provides no information regarding the records of other defendants
and given the district court’s particular emphasis on his “heavy” use of the file
sharing network and the number of images he downloaded. See United States
v. Smith, 440 F.3d 704, 709 (5th Cir. 2006). Vega thus fails to rebut the
presumption of reasonableness accorded his within-guidelines sentence. See
United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). Accordingly, he has
not shown error, plain or otherwise, and his “disagreement with the propriety
of the sentence imposed does not suffice to rebut the presumption of
reasonableness that attaches to [his] sentence.” United States v. Ruiz, 621 F.3d
390, 398 (5th Cir. 2010).
      The judgment of the district court is AFFIRMED.




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