     Case: 11-40940     Document: 00511931520         Page: 1     Date Filed: 07/24/2012




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

                                                                            FILED
                                                                            July 24, 2012
                                     No. 11-40940
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JOHNNY JOE GUERRA,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                           USDC No. 2:10-CR-1128-10


Before DeMOSS, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
        Johnny Joe Guerra pleaded guilty to a single count of conspiracy to possess
with intent to distribute more than 500 grams of methamphetamine. He was
sentenced within the applicable guidelines range to life imprisonment.
        Guerra argues that his sentence is procedurally unreasonable. He asserts
that the district court did not properly apply the 18 U.S.C. § 3553(a) factors,
failed to consider his limited criminal history, and disregarded the “nature and
seriousness” of his conduct. Guerra also alleges that the district court 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-40940    Document: 00511931520      Page: 2   Date Filed: 07/24/2012

                                  No. 11-40940

provide a valid or sufficient reason for his sentence and instead suggested that
his sentence was based upon the conduct of his codefendants.
      We review a sentence for procedural and substantive reasonableness in
light of the sentencing factors in § 3553(a). Gall v. United States, 552 U.S. 38,
46 (2007). Because Guerra did not raise any challenge in the district court to the
procedural reasonableness of his sentence, we review his arguments for plain
error. United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009).
      The record belies Guerra’s contention that the district court failed to
consider the § 3553(a) factors or to assess the nature of his offense conduct and
his criminal history. Cf. Gall, 552 U.S. at 51 (noting that failing to consider the
§ 3553(a) factors is a procedural sentencing error). The record supports that the
district court implicitly considered the § 3553(a) factors and assessed whether
Guerra should be granted sentencing leniency based upon the nature of his role
in the conspiracy and his criminal history. See United States v. Gonzalez, 250
F.3d 923, 930 (5th Cir. 2001). Although the district court did not refer to each
of the § 3553(a) factors, it was not required to do so. See United States v. Smith,
440 F.3d 704, 707 (5th Cir. 2006). Moreover, we presume that the district court
considered the § 3553(a) factors because the court imposed a within-guidelines
sentence. See United States v. Mares, 402 F.3d 511, 519-20 (5th Cir. 2005).
Accordingly, Guerra has not shown any clear or obvious error that affected his
substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009).
      Guerra’s contention that the district court provided invalid or inadequate
reasons for his sentence is also unavailing. He specifically has not shown that
any deficiency in the court’s reasons for his sentence affected his substantial
rights because there is no indication that he would have received a lesser
sentence if the district court had given a different or more adequate explanation.
See id.; Mondragon-Santiago, 564 F.3d at 361, 365. Because Guerra has not
shown that the sentencing outcome was affected by any error in the district



                                        2
   Case: 11-40940    Document: 00511931520      Page: 3    Date Filed: 07/24/2012

                                  No. 11-40940

court’s articulated reasoning for the sentence imposed, he has not established
reversible plain error. See Mondragon-Santiago, 564 F.3d at 364-65.
      Guerra also contends that his sentence was substantively unreasonable
because the sentence imposed was not proportional to his offense conduct and
did not account for his minimal criminal history. Although Guerra argued in the
district court for sentencing leniency on the grounds that he now alleges, he did
not specifically object to the sentence imposed. We need not decide whether
plain error review applies, however, because Guerra is unable to satisfy the
ordinary standard of review. See United States v. Rodriguez, 523 F.3d 519, 526
n.1 (5th Cir. 2008); United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).
      Guerra’s sentence was within the properly calculated guidelines range and
is therefore entitled to a presumption of reasonableness. See United States v.
Newsom, 515 F.3d 374, 379 (5th Cir. 2008). The record shows that the district
court considered Guerra’s request for sentencing leniency based on the nature
and circumstances of the offense and his history and characteristics, and
weighed those factors against the Government’s assertions that a within-
guidelines sentence would, inter alia, account for the seriousness of the offense
and protect the public from further crimes by Guerra. The district court made
an individualized sentencing decision based on the facts of the case and in light
of the § 3553(a) factors and concluded that a within-guidelines sentence was
proper. See Gall, 552 U.S. at 51. Guerra has not shown that the district court
committed “a clear error of judgment in balancing sentencing factors.” United
States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). His mere “disagreement with
the propriety of the sentence imposed does not suffice to rebut the presumption
of reasonableness that attaches to a within-guidelines sentence.” United States
v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010).
      In light of the foregoing, the judgment of the district court is AFFIRMED.




                                         3
