     Case: 11-50375     Document: 00511903249         Page: 1     Date Filed: 06/28/2012




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

                                                                            FILED
                                                                           June 28, 2012
                                     No. 11-50375
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

RODRIGO SANCHEZ-LERMA,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:10-CR-298-1


Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant        Rodrigo      Sanchez-Lerma        was     convicted     of
transporting illegal aliens for financial gain and conspiracy to transport illegal
aliens in violation of 8 U.S.C. § 1324. He was sentenced within the Sentencing
Guidelines to 21 months of imprisonment on both counts, to run concurrently,
and to concurrent three-year terms of supervised release. He appeals his
sentence, claiming that it is both procedurally and substantively unreasonable.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-50375    Document: 00511903249       Page: 2   Date Filed: 06/28/2012

                                   No. 11-50375

      We review sentences for reasonableness in light of the sentencing factors
in 18 U.S.C. § 3553(a). United States v. Mondragon-Santiago, 564 F.3d 357, 360
(5th Cir. 2009). Our review is bifurcated. Gall v. United States, 552 U.S. 38, 51
(2007). We first determine whether the sentencing court committed a significant
procedural error.    Id.   If we conclude that the district court’s decision is
procedurally sound, we will then proceed to review the substantive
reasonableness of the sentence imposed, applying an abuse-of-discretion
standard. United States v. Delgado-Martinez, 564 F.3d 750, 751 (5th Cir. 2009).
“A discretionary sentence imposed within a properly calculated guidelines range
is presumptively reasonable.” United States v. Campos-Maldonado, 531 F.3d
337, 338 (5th Cir. 2008) (internal quotation marks and citation omitted).
      We review a district court’s application of the Guidelines de novo and its
factual findings for clear error. United States v. Rodriguez, 602 F.3d 346, 362
(5th Cir. 2010). However, if a defendant has not preserved an issue for review
in the district court, review is for plain error. See Mondragon-Santiago, 564
F.3d at 361.
      In this case, Sanchez-Lerma failed to alert the district court to the alleged
procedural error in such a manner that the district court could correct itself and
obviate the need for our review and further failed to object to the substantive
reasonableness of his sentence. Accordingly, our review is for plain error. See
id. at 360-61. To prevail, Sanchez-Lerma must demonstrate an error that is
clear or obvious and that affects substantial rights. See Puckett v. United States,
556 U.S. 129, 135 (2009). If such a showing is made, we have the discretion to
correct the error but only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. See id.
      Although Sanchez-Lerma contends that the district court committed
procedural error by failing to properly calculate his sentence, he has failed to
demonstrate any error in the district court’s calculations. Moreover, to the
extent that he suggests that his sentence resulted in an unwarranted disparity

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                                   No. 11-50375

between him and other defendants who obtained a reduced sentence based on
the fast-track early disposition program, that argument is foreclosed. See United
States v. Gomez-Herrera, 523 F.3d 554, 562-63 & n.4 (5th Cir. 2008).
      The record also refutes his assertion that the district court erred by failing
to consider all of the sentencing factors set forth in § 3553(a). The record reflects
that the district court considered the mitigation arguments raised by Sanchez-
Lerma and expressly stated that it had considered the individual § 3553(a)
factors as well as the allocution of the parties and the information contained in
the presentence report in determining the sentence. The district court did not
fail to consider the § 3553(a) factors but instead made an individualized
sentencing decision based on the facts of the case and in light of the § 3553(a)
factors. See Gall, 552 U.S. at 50-51. Accordingly, Sanchez-Lerma has failed to
demonstrate that his sentence is the result of any procedural error.
      He also argues that his 21-month sentence is substantively unreasonable
because it is three months higher than the sentence recommended by the
Government. His disagreement with the district court’s assessment of an
appropriate sentence under the § 3553(a) factors is insufficient to rebut the
presumption that his within-guidelines sentence is reasonable. See United
States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
      The judgment of the district court is AFFIRMED.




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