     Case: 13-50087       Document: 00512453430         Page: 1     Date Filed: 11/26/2013




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

                                                                            FILED
                                                                        November 26, 2013
                                     No. 13-50087
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

RAUL GARCIAPENA-VIZCARRA,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:11-CR-947-5


Before KING, DeMOSS, and GRAVES, Circuit Judges.
PER CURIAM:*
       Raul Garciapena-Vizcarra challenges the substantive reasonableness of
the sentence imposed for his convictions for conspiracy to possess with intent to
distribute more than five kilograms of cocaine and possession with intent to
distribute more than five kilograms of cocaine. He was sentenced within the
guidelines range to 70 months of imprisonment and two years of supervised
release on each count to run concurrently.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 13-50087     Document: 00512453430      Page: 2    Date Filed: 11/26/2013

                                  No. 13-50087

      We review the substantive reasonableness of a sentence for abuse of
discretion. Gall v. United States, 552 U.S. 38, 51 (2007). Garciapena-Vizcarra
contends that the drug-trafficking Guideline, U.S.S.G. § 2D1.1, produces a
guidelines range that is greater than necessary in a mine-run case such as his
because it is not based on empirical data and assumes that a larger quantity of
drugs indicates greater culpability. He also points to his lack of criminal history,
which he contends indicates a low risk of recidivism; devotion to his family; and
remorse as factors that warranted a below-guidelines sentence.
      The district court was not required to question the empirical grounding
behind § 2D1.1. See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.
2009). The drug quantity and Garciapena-Vizcarra’s history and characteristics
were before the district court. Yet, the district court imposed a sentence within
the guidelines range. We have recognized that “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). Garciapena-Vizcarra has not demonstrated that
the district court failed to give the proper weight to any particular § 3553(a)
factor or that his sentence “represents a clear error of judgment in balancing
sentencing factors.” United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
Therefore, he has failed to rebut the presumption of reasonableness that is
accorded to his within-guidelines sentence. See id.
      The judgment of the district court is AFFIRMED.




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