IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 29, 2008
No. 07-10553
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
HECTOR GONZALEZ
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:06-CR-204-2
Before STEWART, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Hector Gonzalez pleaded guilty to possession with intent to distribute 50
kilograms of marijuana and aiding and abetting. Gonzalez moved for a sentence
below the recommended range based on his status as an undocumented alien
and the factors set forth in 18 U.S.C. § 3553(a). The district court denied the
motion and sentenced Gonzalez to 63 months in prison.
Gonzalez argues that the district court erred in denying his motion to
depart from the Sentencing Guidelines. This court lacks jurisdiction to review
*
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should not be published and is not precedent except under the limited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.
No. 07-10553
the district court’s denial of a downward departure unless the district court
mistakenly believes that it does not have the authority to depart under the
Guidelines. United States v. Sam, 467 F.3d 857, 861 (5th Cir. 2006). Contrary
to Gonzalez’s argument, there is no ambiguity in the record that the district
court believed that it lacked the authority to depart. Accordingly, this court
lacks jurisdiction to review this issue.
Gonzalez argues that he received an unreasonable sentence because, as an
undocumented alien, the sentence was greater than necessary to achieve the
sentencing goals set forth in 18 U.S.C. § 3553(a). See United States v. Nikonova,
480 F.3d 371, 375 (5th Cir.), cert. denied, 128 S. Ct. 163 (2007)). Procedurally
sound sentences imposed inside or outside the Guidelines range are reviewed for
reasonableness under an abuse-of-discretion standard. Gall v. United States,
128 S. Ct. 586 (2007). This court has held that sentences within a properly
calculated Guidelines range should be afforded a rebuttable presumption of
reasonableness, and the Supreme Court has upheld the use of this presumption.
Id.; Rita v. United States, 127 S. Ct. 2456, 2462 (2007); United States v. Alonzo,
435 F.3d 551, 554 (5th Cir. 2006).
Gonzalez argues that the district court did not consider all of the factors
enumerated in § 3553(a) in determining his sentence. When a sentencing court
exercises its discretion to impose a sentence within a properly calculated
guidelines range, this court infers that the district court considered all of the
factors required for a fair sentence. United States v. Smith, 440 F.3d 704, 708
(5th Cir. 2006). In addition, the district court was clear in its statement that the
information presented by Gonzalez was considered as was the reason the court
was imposing a sentence at the bottom of the guidelines range. On appeal,
Gonzalez has not presented anything to overcome the presumption that the
district court imposed a reasonable sentence. Gonzalez’s sentence is
AFFIRMED.
2