     Case: 12-40157     Document: 00512028311         Page: 1     Date Filed: 10/22/2012




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

                                                                            FILED
                                                                         October 22, 2012
                                     No. 12-40157
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ELDA ELIZABETH RODRIGUEZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:10-CR-1033-1


Before REAVLEY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
        Elda Elizabeth Rodriguez pleaded guilty to knowingly making a false
statement to a firearm dealer, in violation of 18 U.S.C. § 924(a)(1)(A), and was
sentenced to 37 months of imprisonment and three years of supervised release.
She argues that the district court erred by applying the enhancements in
U.S.S.G. § 2K2.1, that the sentence is substantively unreasonable because her
codefendant received a lower sentence, and that 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-40157    Document: 00512028311     Page: 2   Date Filed: 10/22/2012

                                  No. 12-40157

unconstitutionally relied on facts not proved beyond a reasonable doubt in
imposing sentence.
      Section 2K2.1 was not used to calculate Rodriguez’s offense level;
Rodriguez’s offense level was calculated using the cross-reference in § 2M5.2.
This claim of error presents no issue for appeal as it is based on an erroneous
reading of the record.
      Rodriguez did not object to the substantive reasonableness of the sentence.
Therefore, this claim of error is reviewed for plain error. See United States v.
Peltier, 505 F.3d 389, 391 (5th Cir. 2007). Rodriguez recruited her codefendant
into participating in the offense, and her codefendant purchased fewer firearms.
Given the differences in Rodriguez’s and her codefendant’s respective culpability,
any disparity in their sentences was not unwarranted.             See 18 U.S.C.
§ 3553(a)(6). Moreover, “the sentencing judge is in a superior position to find
facts and judge their import under § 3553(a) with respect to a particular
defendant.” United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir.
2008). Rodriguez has failed to rebut the presumption of reasonableness that is
accorded to her within-guidelines sentence. See United States v. Cooks, 589 F.3d
173, 186 (5th Cir. 2009). There was no error, plain or otherwise, with respect to
the substantive reasonableness of her sentence.
      Rodriguez’s claim of constitutional error is raised for the first time on
appeal and thus is reviewed for plain error.             See United States v.
Rodarte-Vasquez, 488 F.3d 316, 321 (5th Cir. 2007). The district court did not
err by enhancing Rodriguez’s sentence on the basis of facts not proved beyond
a reasonable doubt because Rodrigiez was convicted and sentenced under the
advisory sentencing regime and the facts relied on by the district court did not
increase the statutory maximum sentence. See United States v. Thompson, 454
F.3d 459, 467-68 (5th Cir. 2006). There was no constitutional error, plain or
otherwise.
      The judgment of the district court is AFFIRMED.

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