     Case: 19-50554      Document: 00515397978         Page: 1    Date Filed: 04/28/2020




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


                                    No. 19-50554
                                                                               FILED
                                                                           April 28, 2020
                                  Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

UBALDO GABRIEL ACOSTA-LEYVA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:18-CR-3542-1


Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Ubaldo Gabriel Acosta-Leyva appeals the within-guidelines concurrent
33-month sentences imposed for his conviction for conspiracy to import
marijuana, importation of marijuana, conspiracy to possess marijuana with
intent to distribute, and possession of marijuana with intent to distribute. He
contends that his concurrent sentences are substantively unreasonable
because they punish him for a speculative quantity of marijuana and fail under


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-50554

18 U.S.C. § 3553(a) to adequately account for his background and lack of
criminal history, his lack of knowledge of the amount of drugs involved, and
the fact that he committed the nonviolent offenses out of fear for the safety of
his family.
      We review the substantive reasonableness of Acosta-Leyva’s sentences
for abuse of discretion. See Holguin-Hernandez v. United States, 140 S. Ct. 762,
766–67 (2020). Acosta-Leyva’s concurrent sentences are presumptively
reasonable because they fell within his advisory guidelines range. See United
States v. Hernandez, 876 F.3d 161, 166 (5th Cir. 2017). The district court heard
Acosta-Leyva’s arguments for below-guidelines sentences, but the district
court determined that concurrent sentences at the bottom of the guidelines
range were appropriate. We are also not persuaded by Acosta-Leyva’s
argument that the district court should have applied a downward variance
because the sentencing guidelines’ treatment of drug quantities is not based
on empirical data. Acosta-Leyva does not challenge the district court’s
calculation of the drug quantity attributable to him, and we have rejected the
argument that a district court must disregard a particular guideline because
it is not empirically based. See United States v. Mondragon-Santiago, 564 F.3d
357, 366–67 (5th Cir. 2009); see also United States v. Sphabmisai, 703 F. App’x
275, 276 (5th Cir. 2017) (holding that a district court is “not required to
question the empirical grounding” behind the guidelines).
      Furthermore, our review of 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.” Hernandez, 876 F.3d at 166 (internal quotation marks and citation
omitted). The district court was not persuaded that the § 3553(a) factors
weighed in favor of sentencing below the guidelines range, and we will not



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                               No. 19-50554

reweigh the factors ourselves. See United States v. Campos-Maldonado, 531
F.3d 337, 339 (5th Cir. 2008). Giving due deference to the district court’s
sentencing decision, we conclude after reviewing the record that Acosta-Leyva
has not shown an abuse of discretion with respect to the substantive
reasonableness of his sentence. See Hernandez, 876 F.3d at 166–67.
     AFFIRMED.




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