Opinion
No. 09-40955 Summary Calendar.
June 7, 2010.
James Lee Turner, Assistant U.S. Attorney, U.S. Attorney's Office, Houston, TX, for Plaintiff-Appellee.
Marjorie A. Meyers, Federal Public Defender, Timothy William Crooks, Assistant Federal Public Defender, Federal Public Defender's Office, Houston, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of Texas, USDC No. 7:09-CR-451-1.
Before KING, STEWART, and HAYNES, Circuit Judges.
Guillermo Jaime Villegas appeals the within Guidelines sentence that he received. Villegas pleaded guilty to being unlawfully present in this country after having been deported, in violation of 8 U.S.C. § 1326. He argues that, in light of his arguments for a sentence below the Guidelines, the district court did not give adequate reasons for imposing its sentence. He also argues that the sentence was greater than necessary to achieve the factors set forth in 18 U.S.C. § 3553(a).
Villegas's sentence is reviewed for reasonableness in light of the sentencing factors in § 3553(a). United States v. Mon-dragon-Santiago, 564 F.3d 357, 360 (5th Cir.), cert. denied, ___ U.S. ___, 130 S.Ct. 192, 175 L.Ed.2d 120 (2009). This court first determines whether the district court committed any significant procedural error, including, among other things, not adequately explaining the sentence. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). If there is no procedural error, this court then "consider[s] the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard." Id.
Villegas's arguments about the procedural reasonableness of his sentence are unavailing. The district court listened to Villegas's arguments, adopted the PSR, and rejected Villegas's request for a down-ward departure. See United States v. Gomez-Hemra, 523 F.3d 554, 564-66 (5th Cir. 2008); United States v. Rodriguez, 523 F.3d 519, 525-26 (5th Cir. 2008). Unlike the district court in United States v. Tis-dale, 264 Fed.Appx. 403, 412 (5th Cir. 2008), on which Villegas relies, the district court in this case expressly referenced § 3553(a). Further, the district court's comments specifically addressed Villegas's argument that his inability to make a life in Mexico was a factor to consider in granting him a sentence below the Guidelines. Thus, this court is satisfied that the district court considered the parties' arguments and had a reasoned basis for exercising its own legal decision making authority. See Rita v. United States, 551 U.S. 338, 356-57, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007).
Villegas's argument that the facts and circumstances of his case rebut its presumed substantive reasonableness is also unavailing given that it is essentially a request for this to court reweigh the § 3553(a) factors. "[T]he 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 (2008). That this court "might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court." Gall, 552 U.S. at 51, 128 S.Ct. 586. Villegas's disagreement with the propriety of the within-guidelines sentence does not suffice to rebut the presumption of reasonableness that attaches to it. See Gomez-Herrew, 523 F.3d at 565-66; Rodriguez, 523 F.3d at 526.
AFFIRMED.