     Case: 12-10381       Document: 00512115224         Page: 1     Date Filed: 01/16/2013




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

                                                                            FILED
                                                                         January 16, 2013
                                     No. 12-10381
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JOSE LUIS ORTEGA-MARTINEZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:11-CR-157-1


Before WIENER, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Jose Luis Ortega-Martinez appeals his within-
guidelines 120-month sentence that followed his guilty plea to conspiracy to
possess with intent to distribute 500 grams or more of a mixture or substance
containing a detectable amount of cocaine. We affirm.
       Ortega-Martinez contends that the district court committed a procedural
error when it applied a two-level U.S.S.G. § 2D1.1(b)(1) enhancement for
possessing a dangerous weapon in connection with a drug trafficking crime. We

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-10381     Document: 00512115224      Page: 2    Date Filed: 01/16/2013

                                   No. 12-10381

review this factual finding by the district court for clear error. See United States
v. Ruiz, 621 F.3d 390, 396 (5th Cir. 2010). The unrebutted facts contained in the
presentence report and factual resume show that Ortega-Martinez could
reasonably have foreseen the possession of the firearm by his coconspirator at
the residence used to distribute large amounts of cocaine. See United States v.
Mergerson, 4 F.3d 337, 350 (5th Cir. 1993).         As Ortega-Martinez is held
responsible for all reasonably foreseeable acts of the conspiracy, we uphold the
district court’s application of the enhancement. See id.
      Ortega-Martinez argues that the sentence imposed was substantively
unreasonable because the district court failed to consider adequately his
personal history and characteristics, pursuant to 18 U.S.C. § 3553(a)(1), and the
availability of other sentences.     As Ortega-Martinez did not object to the
substantive reasonableness of the sentence in the district court, our review is
limited to plain error. See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir.
2007).
      After considering the arguments of counsel regarding Ortega-Martinez’s
likely deportation and the fact that his spouse is a United States citizen, the
district court concluded that a sentence in “the middle” of the guideline range
would be appropriate and would adequately address all the factors that the court
should consider under § 3553(a). As Ortega-Martinez was sentenced within a
properly calculated Guidelines range, his sentence is entitled to a presumption
of reasonableness, which we see no reason to disturb. See United States v.
Rodriguez, 523 F.3d 519, 526 (5th Cir. 2008).
      AFFIRMED.




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