     Case: 12-40526       Document: 00512208394         Page: 1     Date Filed: 04/15/2013




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

                                                                            FILED
                                                                           April 15, 2013
                                     No. 12-40526
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

CHRISTIAN TORRES-SARABIA,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:11-CR-287-3


Before BENAVIDES, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Christian Torres-Sarabia (Torres) appeals the sentence imposed following
his guilty plea conviction for conspiracy to possess with intent to distribute 100
kilograms or more of marijuana.               Torres argues that his sentence was
substantively unreasonable because it was greater than necessary to achieve the
sentencing goals set forth in 18 U.S.C. § 3553(a). He maintains that the
guidelines sentence range resulted in a sentence that was unreasonable because
the Guideline under which he was sentenced was not empirically based. He

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-40526

contends that his personal history as a transplant patient and minor role in the
offense called for a sentence lower than the guidelines range. He notes that his
two co-defendant brothers both received sentences of 46 months of
imprisonment, and he argues that this shows an unwarranted disparity in
sentences.
      In the district court, Torres did not object to the substantive
reasonableness of the sentence.       Accordingly, we review the substantive
reasonableness of the sentence for plain error only. See United States v. Peltier,
505 F.3d 389, 391-92 (5th Cir. 2007). Under the plain error standard, Torres
must show a clear or obvious forfeited error that affected his substantial rights.
See Puckett v. United States, 556 U.S. 129, 135 (2009). If Torres makes such a
showing, we have discretion to correct the error but should do so only if the error
seriously affects the fairness, integrity, or public reputation of the proceedings.
See id.
      As Torres’s sentence was within the guidelines range, a presumption of
reasonableness applies. See United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.
2006). The lack of an empirical basis for the Guideline that was the basis of the
sentence does not affect the presumption of reasonableness. See United States
v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009). While Torres’s personal history
and role in the offense may have been mitigating factors, the district court
considered these factors and granted Torres a reduction for having a minor role
in the offense. Torres has not brought forth the record on appeal explaining why
his brothers were sentenced to 46 months of imprisonment. We note that they
must have received relief from the statutory minimum sentence pursuant to the
safety valve or for providing substantial assistance, making them not similarly
situated to Torres. See § 3553(e), (f); United States v. Guillermo Balleza, 613
F.3d 432, 435 (5th Cir. 2010).        Accordingly, Torres has not shown an
unwarranted sentence disparity. See United States v. Candia, 454 F.3d 468, 476
(5th Cir. 2006). Considering the totality of the circumstances, as this court

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                                 No. 12-40526

must, see Gall v. United States, 552 U.S. 38, 51 (2007), Torres has not shown
that the sentence was plainly erroneous. See Rita v. United States, 551 U.S. 338,
359-60 (2007); Peltier, 505 F.3d at 392-94.
      AFFIRMED.




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