Case: 09-50832 Document: 00511127900 Page: 1 Date Filed: 06/01/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 1, 2010
No. 09-50832
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ELIAZAR JUAREZ,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:09-CR-220-1
Before JOLLY, BARKSDALE, and CLEMENT, Circuit Judges.
PER CURIAM:*
Subsequent to his guilty-plea conviction of one count of illegal reentry into
the United States following a prior deportation, Eliazar Juarez was sentenced,
inter alia, to 41 months’ imprisonment.
Juarez challenges only the substantive reasonableness of his sentence,
asserting it was unduly harsh because the court gave his prior convictions too
much weight when considering the 18 U.S.C. § 3553(a) sentencing factors.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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No. 09-50832
Arguably, Juarez failed to preserve this issue in district court. We need
not decide that question, however, because his claim fails under the abuse-of-
discretion standard of review applied to properly preserved challenges to the
reasonableness of a sentence, as discussed below.
Although post-Booker (2005), the Guidelines are advisory only, and an
ultimate sentence is reviewed for reasonableness under an abuse-of-discretion
standard, the district court must still properly calculate the guideline-sentencing
range for use in deciding on the sentence to impose. Gall v. United States, 552
U.S. 38, 51 (2007). In that respect, its application of the Guidelines is reviewed
de novo; its factual findings, only for clear error. E.g., United States v. Cisneros-
Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United States v. Villegas, 404 F.3d
355, 359 (5th Cir. 2005). As noted, Juarez does not claim procedural error in
calculating his sentencing range.
A properly calculated within-guidelines sentence, as in this instance, is
presumed reasonable. United States v. Armstrong, 550 F.3d 382, 405 (5th Cir.
2008), cert. denied, 130 S. Ct. 54 (2009); see also United States v. Alonzo, 435
F.3d 551, 554 (5th Cir. 2006). To rebut that presumption, Juarez must show the
district court failed to account for a sentencing factor that should have been
accorded substantial weight, gave substantial weight to an “irrelevant or
improper factor”, or made “a clear error of judgment in balancing sentencing
factors”. United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009), cert. denied,
No. 09-9216, 2010 WL 637943 (22 Mar. 2010).
Juarez has not met this standard. His claims concerning the district
court’s balancing of the § 3553(a) factors amount to a disagreement with the
district court’s weighing of these factors and the appropriateness of his within-
guidelines sentence. This disagreement does not suffice to show error in
connection with his sentence. See id.; United States v. Gomez-Herrera, 523 F.3d
554, 565-66 (5th Cir. 2008) (upholding presumption of reasonableness of within-
guidelines sentence where appellant claimed Guidelines overstated the
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Case: 09-50832 Document: 00511127900 Page: 3 Date Filed: 06/01/2010
No. 09-50832
seriousness of his offense). He has not shown that his sentence was
substantively unreasonable, nor has he rebutted the presumption of
reasonableness that attaches to his within-guidelines sentence. See Armstrong,
550 F.3d at 404.
AFFIRMED.
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