     Case: 12-41314       Document: 00512311822         Page: 1     Date Filed: 07/17/2013




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

                                                                            FILED
                                                                            July 17, 2013
                                     No. 12-41314
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

RUDY RODRIGUEZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 2:10-CR-1128-3


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Rudy Rodriguez pled guilty to conspiracy to commit murder in aid of a
racketeering activity (Count One) and conspiracy to possess with intent to
distribute more than 500 grams of methamphetamine (Count Five). Finding
that the district court erred in applying a two-level enhancement pursuant to
U.S.S.G. § 2D1.1(b)(4), we previously vacated Rodriguez’s 324-month sentence
imposed on Count Five and remanded for resentencing. On remand, the district
court found that the applicable Guidelines range, without the enhancement, was

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-41314     Document: 00512311822      Page: 2    Date Filed: 07/17/2013

                                  No. 12-41314

292 to 365 months of imprisonment, and it again sentenced Rodriguez within the
Guidelines range to 324 months of imprisonment.
      The sole issue on appeal is whether the 324-month within-Guidelines
sentence is substantively reasonable. As Rodriguez made no objection to his
sentence in the district court, our review is for plain error. See United States v.
Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009).
      This court applies a presumption of reasonableness to a properly
calculated within-Guidelines sentence. United States v. Campos-Maldonado,
531 F.3d 337, 338 (5th Cir. 2008). To rebut the presumption, a defendant must
show “that the sentence does not account for a factor that should receive
significant weight, it gives significant weight to an irrelevant or improper factor,
or it represents a clear error of judgment in balancing sentencing factors.”
United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
      Rodriguez has not done so. Although he argues that the district court
erred in balancing the sentencing factors and gave more weight to some factors
than others, his argument amounts to a mere disagreement with the district
court’s weighing of proper and relevant sentencing factors and is not sufficient
to rebut the presumption of reasonableness given to his sentence. See Gall v.
United States, 552 U.S. 38, 51 (2007) (explaining that appellate courts will not
re-weigh the sentencing factors). The district court expressly noted that in
imposing the sentence it considered the 18 U.S.C. § 3553(a) factors, including the
seriousness of the offense, the extent of Rodriguez’s criminal history, the need
to protect the public, and the need to deter future criminal conduct. Even if
circumstances could have justified a lesser sentence, “the sentencing judge is in
a superior position to find facts and judge their import under § 3553(a) with
respect to a particular defendant.” Campos-Maldonado, 531 F.3d at 339.
      Accordingly, the judgment of the district court is AFFIRMED.




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