Case: 10-10845 Document: 00511477069 Page: 1 Date Filed: 05/13/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 13, 2011
No. 10-10845
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
SALVADOR NUNEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:10-CR-50-4
Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
Salvador Nunez pleaded guilty to conspiracy to possess with intent to
distribute a controlled substance, and he was sentenced within the advisory
guidelines range to 262 months of imprisonment and five years of supervised
release.
Nunez argues that the nature and circumstances of the offense do not
support his sentence because (1) neither he nor anyone else in the conspiracy
harmed anyone during the commission of the offense; (2) he was not an organizer
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-10845 Document: 00511477069 Page: 2 Date Filed: 05/13/2011
No. 10-10845
or leader of the conspiracy; and (3) he “possessed a relatively small amount of
methamphetamine.” He further contends that his history and characteristics do
not support his sentence because he was only 23 years old at the time of his
conviction, had been abused by his father, and was planning to get married in
May 2010. Additionally, he asserts that the district court was entitled to
sentence Nunez anywhere within the statutory range of imprisonment.
The Government moves for summary affirmance on the ground that circuit
precedent forecloses Nunez’s argument and, alternatively, requests an extension
of time to file a responsive brief. Nunez has filed an unopposed motion for leave
to file an out-of-time response to the Government’s motion.
Nunez has not shown that his sentence did not account for a factor that
should have received significant weight, gave significant weight to an irrelevant
or improper factor, or represented a clear error of judgment in balancing
sentencing factors; his arguments merely reflect his disagreement with the
propriety of his sentence and the weighing of factors that were properly
considered. See United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009), cert.
denied, 130 S. Ct. 1930 (2010). As a result, he has failed to overcome the
presumption of reasonableness that attaches to his within-the-guidelines
sentence on appellate review. See United States v. Campos-Maldonado, 531 F.3d
337, 338 (5th Cir. 2008). Accordingly, Nunez has not demonstrated that the
district court abused its discretion by imposing a substantively unreasonable
within-guidelines sentence. See Gall v. United States, 552 U.S. 38, 51 (2007).
AFFIRMED; MOTIONS FOR SUMMARY AFFIRMANCE AND FOR
LEAVE TO FILE OUT-OF-TIME RESPONSE GRANTED; MOTION FOR
EXTENSION OF TIME DENIED.
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