Case: 11-40459 Document: 00511762951 Page: 1 Date Filed: 02/20/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 20, 2012
No. 11-40459
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ARMANDO BRIAGAS-CORTEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:10-CR-2123-1
Before JONES, Chief Judge, and PRADO and ELROD, Circuit Judges.
PER CURIAM:*
Armando Briagas-Cortez appeals the sentence imposed following his
conviction on one count of illegal reentry into the United States. The district
court sentenced him within his advisory guidelines range to 51 months of
imprisonment and three years of supervised release.
After United States v. Booker, 543 U.S. 220 (2005), sentences are reviewed
for reasonableness. Gall v. United States, 552 U.S. 38, 46 (2007). We first
examine whether the district court committed any significant procedural error.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-40459 Document: 00511762951 Page: 2 Date Filed: 02/20/2012
No. 11-40459
Id. at 51. If the district court’s decision is procedurally sound, we will then
consider the substantive reasonableness of the sentence under an
abuse-of-discretion standard. Id.
Briagas-Cortez first argues that the district court erred because it failed
to give due consideration to the factors enumerated in U.S.S.G. § 2L1.2,
comment. (n.8) regarding a downward departure based on cultural assimilation.
We lack jurisdiction to review the denial of a downward departure by the district
court unless Briagas-Cortez “points to something in the record indicating that
the district court held an erroneous belief that it lacked the authority to depart.”
United States v. Hernandez, 457 F.3d 416, 424 & n.5 (5th Cir. 2006). Briagas-
Cortez has not done so. Instead, the record reflects that the district court
considered his arguments regarding cultural assimilation but found simply that
his circumstances did not warrant a sentence below the guidelines range.
Accordingly, we lack jurisdiction to review Briagas-Cortez’s challenge on this
issue. See id.
Briagas-Cortez also challenges the district court’s assessment of the
sentencing factors under 18 U.S.C. § 3553(a). He contends that the § 3553(a)
factors do not justify his 51-month sentence. The district court considered his
arguments for a below-guidelines sentence and rejected them. “[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). Briagas-Cortez’s
sentence is presumed reasonable because it fell within his advisory guidelines
range, see United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008),
and he has not shown sufficient reason for this court to disturb that
presumption.
AFFIRMED.
2