     Case: 11-40093     Document: 00511639454         Page: 1     Date Filed: 10/20/2011




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

                                                                            FILED
                                                                         October 20, 2011
                                     No. 11-40093
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

GUADALUPE OZORNIO CRUZ, JR.,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:04-CR-44-1


Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
        Guadalupe Ozornio Cruz, Jr., pleaded guilty to one count of conspiracy to
possess more than five kilograms of cocaine with intent to deliver. See 21 U.S.C.
§§ 846, 841(a)(1). He appeals his within-guidelines sentence of 210 months of
imprisonment.
        A presumption of reasonableness applies to a sentence that is within a
properly calculated guidelines range. United States v. Alonzo, 435 F.3d 551, 554
(5th Cir. 2006). Because Cruz did not object to the sentence in the district court,

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-40093    Document: 00511639454      Page: 2    Date Filed: 10/20/2011

                                   No. 11-40093

review is for plain error. United States v. Whitelaw, 580 F.3d 256, 259-60 (5th
Cir. 2009). To show plain error, the appellant must show a forfeited error that
is clear or obvious and that affects his substantial rights. Puckett v. United
States, 556 U.S., 129, 129 S. Ct. 1423, 1429 (2009). If the appellant makes such
a showing, this court has the discretion to correct the error but only if it
seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id.
      In his sole issue on appeal, Cruz argues that his sentence is substantively
unreasonable because the drug-trafficking guidelines lack an empirical basis and
because his personal history and characteristics should have been given more
weight. His argument regarding lack of an empirical basis for § 2D1.1 is
foreclosed. United States v. Duarte, 569 F.3d 528, 530-31 (5th Cir. 2009). As for
Cruz’s personal history and characteristics, Cruz notes only that he is a father
and that he takes his responsibilities seriously. This factor was before the
district court. Cruz does not explain how or why this factor could have received
more weight. This argument is unavailing.
      Cruz has not shown that the sentence does not account for a factor that
should receive significant weight, that it gives significant weight to an irrelevant
or improper factor, or that it represents a clear error of judgment in balancing
sentencing factors. See United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009),
cert. denied, 130 S. Ct. 1930 (2010). He has not shown error, plain or otherwise.
See Puckett, 129 S. Ct. at 1429.
      AFFIRMED.




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