IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 22, 2008
No. 07-40281
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
RICARDO ROJAS-MARROQUIN, also known as Oscar Medina
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:06-CR-672-2
Before REAVLEY, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
Ricardo Rojas-Marroquin (Rojas) appeals the 97-month sentence imposed
following his guilty plea conviction for conspiracy to possess with intent to
distribute more than 500 grams but less than five kilograms of cocaine. Rojas
argues that his sentence should be vacated as procedurally unreasonable
because at the time of sentencing the district court was precluded by this court’s
precedent from considering mitigation evidence in support of a below guidelines
*
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should not be published and is not precedent except under the limited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. 07-40281
sentence. He further contends that this court’s precedent following United
States v. Booker, 543 U.S. 220 (2005), effectively made the Guidelines mandatory
and prevented the district court from considering all of the 18 U.S.C. § 3553(a)
factors. He asserts that the decisions in Rita v. United States, 127 S. Ct. 2456
(2007), Gall v. United States, 128 S. Ct. 586 (2007), and Kimbrough v. United
States, 128 S. Ct. 558 (2007), make it clear that the Guidelines “‘are only one
factor to consider when imposing [a] sentence,’” and that a district court should
impose an individualized sentence that is sufficient, but not greater than
necessary, to achieve the purposes of sentencing under § 3553(a).
This court reviews a sentencing decision for “reasonableness,” which is the
equivalent of abuse-of-discretion review. Gall, 128 S. Ct. at 594. At the
sentencing hearing, Rojas did not offer any argument or mitigation evidence to
support a downward departure. The court heard the arguments of counsel and
the comments by Rojas regarding the disputed facts contained in the
presentence report, specifically referred to circumstances affecting consideration
of the § 3553(a) factors, and concluded that a sentence within the guidelines
range was appropriate in light of those considerations. Nothing in the record
suggests that the district court was in any way inclined to deviate below the
guidelines ranges. In fact, after imposing Rojas’s within guideline sentence, the
district court specifically informed Rojas that his sentence was based on a
consideration of “all the applicable [§] 3553(a) factors.” The district court further
informed Rojas that the 97-month sentence was a “generous sentence” given the
amount of cocaine involved, Rojas’s actions at the time of the offense, and the
way Rojas had conducted himself at the sentencing hearing. The district court’s
decision to sentence Rojas within the guidelines range is entitled to deference
and a presumption of reasonableness that Rojas has failed to overcome. See
United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006); See United States v.
Campos- Maldonado, 531 F.3d 338, 339 (5th Cir. 2008).
Accordingly, the judgment of the district court is AFFIRMED.
2