Case: 13-40891 Document: 00512722989 Page: 1 Date Filed: 08/05/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-40891
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
August 5, 2014
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff−Appellee,
versus
JHONNY JAVIER MADRID-URQUIA,
Defendant−Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:12-CR-1156-1
Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM: *
Jhonny Javier Madrid-Urquia appeals the sentence imposed on his
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-40891 Document: 00512722989 Page: 2 Date Filed: 08/05/2014
No. 13-40891
conviction of being an alien found unlawfully in the United States after having
been deported following an aggravated-felony conviction. He contends that his
sentence does not adequately account for the considerations under U.S.S.G.
§ 5K2.12 and is greater than necessary to satisfy the sentencing goals of
18 U.S.C. § 3553(a). The district court sentenced Madrid-Urquia within his
guideline range to forty-seven months of imprisonment.
According to Madrid-Urquia, the district court failed adequately to con-
sider the circumstances of his flight from Honduras and his reasons for return-
ing to the United States. To the extent Madrid-Urquia argues that the court
erred by failing to depart downward pursuant to § 5K2.12, we lack jurisdiction
to review the argument. See United States v. Alaniz, 726 F.3d 586, 627 (5th
Cir. 2013).
A challenge to the substantive reasonableness of a sentence based on the
§ 3553(a) factors is ordinarily reviewed under an abuse-of-discretion standard.
Gall v. United States, 552 U.S. 38, 51 (2007). But Madrid-Urquia’s challenge
to the substantive reasonableness of his sentence is reviewed for plain error
because he did not object, in the district court, to the sentence as substantively
unreasonable. See United States v. Heard, 709 F.3d 413, 425 (5th Cir.) (stating
that request for below-guideline sentence did not preserve issue of substantive
reasonableness), cert. denied, 134 S. Ct. 470 (2013). Because the sentence is
within the advisory range, it is presumptively reasonable. See United States
v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008). The presumption of
reasonableness “is rebutted only upon a showing 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 judg-
ment in balancing sentencing factors.” United States v. Cooks, 589 F.3d 173,
186 (5th Cir. 2009).
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No. 13-40891
The district court heard Madrid-Urquia’s arguments for a lower sentence
but determined that forty-seven months was appropriate. “[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 (5th Cir. 2008); see Gall, 552 U.S. at 51 (“The
fact that the appellate court might reasonably have concluded that a different
sentence was appropriate is insufficient to justify reversal of the district
court.”). Madrid-Urquia has not shown sufficient reason to disturb the pre-
sumption of reasonableness. See Gomez-Herrera, 523 F.3d at 565-66. The
sentence is not an abuse of discretion, much less plain error. Gall, 552 U.S.
at 51; Heard, 709 F.3d at 425.
The judgment is AFFIRMED.
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