Case: 16-41009      Document: 00513868651         Page: 1    Date Filed: 02/09/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                          United States Court of Appeals

                                    No. 16-41009
                                                                                   Fifth Circuit

                                                                                 FILED
                                  Summary Calendar                         February 9, 2017
                                                                            Lyle W. Cayce
                                                                                 Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff–Appellee,

versus

EMILIO DE LA GARZA-MONTEMAYOR,
 Also Known as Emilio Del La Garza Montemayor,


                                                 Defendant–Appellant.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:15-CR-436-1




Before JOLLY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM: *



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 16-41009

      Emilio de la Garza-Montemayor pleaded guilty of illegal reentry after
deportation in violation of 8 U.S.C. § 1326 and was sentenced to 48 months of
imprisonment, a variance from the advisory guideline range of 57 to 71
months, and no supervised release. He claims that his sentence is unreasona-
ble because the district court failed to grant him an 18-month sentence, giving
due consideration to the 18 U.S.C. § 3553 sentencing factors. De la Garza-
Montemayor acknowledges that the court did grant his request for a variance,
but he contends that the variance was not sufficient, and he maintains that
the court failed to give due consideration to the fact that his previous conviction
was 12 years before the current one.

      We review sentences for substantive reasonableness, in light of the
§ 3553(a) factors, under an abuse-of-discretion standard. Gall v. United States,
552 U.S. 38, 49-51 (2007). A within-guidelines sentence is entitled to a pre-
sumption of reasonableness. Rita v. United States, 551 U.S. 338, 347 (2007).
“The presumption 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
judgment in balancing sentencing factors.” United States v. Cooks, 589 F.3d
173, 186 (5th Cir. 2009). Because the record reveals no objection to the sen-
tence, the plain-error standard of review applies. See Puckett v. United States,
556 U.S. 129, 134–35 (2009); United States v. Peltier, 505 F.3d 389, 391–92 (5th
Cir. 2007).

      De la Garza-Montemayor’s counsel asked the district court to consider
the age of the earlier conviction, but he stated that the main concern was the
health problems of the defendant and those of his family. The court heard and
considered the attorney’s arguments concerning his reasons for requesting a
variance. The court took into account de la Garza-Montemayor’s personal


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                                 No. 16-41009

history and characteristics and the other statutory factors in § 3553(a), includ-
ing his prior conviction for drug trafficking and his health problems, before
imposing sentence.

      De la Garza-Montemayor’s briefing does not show a clear error of judg-
ment in balancing the § 3553(a) factors; instead, he merely disagrees with the
weighing of those factors. See Cooks, 589 F.3d at 186. At sentencing, he per-
sonally argued for more weight to be given to his health problems. He should
not be heard to urge now that the court did not give enough weight to the age
of his earlier conviction, and he has not demonstrated that the district court
plainly erred. See Puckett, 556 U.S. at 134–35; Peltier, 505 F.3d at 391–92.

      The judgment is AFFIRMED.




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