### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-50987 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. JOSE TRINIDAD OROZCO, Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 2:09-CR-1188-4

Before WIENER, GARZA, and CLEMENT, Circuit Judges. PER CURIAM: * Defendant-Appellant Jose Trinidad Orozco ple a de d guilty to a s in gle count of conspiracy to possess with intent to distribute more than fiv e k i l o gr ams of cocaine. The district court imposed a within guidelines sentence of 108 months of imprisonment. On appeal, Orozco argues that the district court procedurally erred by failing to grant a reduction in his offense level based on his role in the offense and that the district court imposed an unreasonable sentence. U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D June 28 , 20 12 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 11-50987 Document: 00511904087 Page: 1 Date Filed: 06/28/2012No. 11-50987

Following United States v. Booker , 543 U.S. 220 (2005), sentences are review e d f

o r r easonableness in light of the sentencing factors in 18 U.S.C. § 3553(a). Unite d S t a t es v. Mares , 402 F.3d 511, 519-20 (5th Cir. 2005). Pursuant to Gall v. United States , 552 U.S. 38, 51 (2007), we must “first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calcu l a t i n g) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately exp lain the chosen sentence.” Id. If there is no pr o c e d u ral error, the appellate court then reviews the substantiv e r e asonableness of the sentence under a deferential abuse of discretion standard. Id. Orozco’s primary argument is that the district court f a i l e d t o assess correctly his role in the offense and to grant him a minor or minimal participant reduction under U.S.S.G. § 3B1.2. The defendant has the b u r d e n o f showing that he is entitled to the adjustment. United States v. Garcia , 242 F.3d 593, 597 (5th Cir. 2001). We review a district court ’ s a p plication of the Sentencing Guidelines de novo and its factual findings for clear e rr o r. United States v. Rodriguez , 602 F.3d 346, 362 (5th Cir. 2010). A factu a l f i n di ng regarding a defendant’s role will be disturbed only if it is clearly erroneou s . United States

v. Valencia, 44 F.3d 269, 272 (5th Cir. 1995). Orozco’s written objection to the lack of a reduction for his role in the offense was sufficient to preserve the issue for review. Se e U

n i t e d States v. Medina-Anicacio , 325 F.3d 638, 642 (5th Cir. 2003). Orozco clearly knew he was b e i n g p a id to participate in a drug-related conspiracy. S t atements in the PSR indicate that Orozco’s role was not significantly different than another co-defendant, who also expected to receive

a similar amount of money for his part in the offense. Fi n a l l y , o t her than attemp t ing to distinguish his lack of criminal history from his co-defendants’ criminal history, Orozco failed to demonstrate that he was entitled to the

2 Case: 11-50987 Document: 00511904087 Page: 2 Date Filed: 06/28/2012No. 11-50987

reduction. See Garcia , 242 F.3d at 597. The district court did not clearly err in refusing to grant a reduction for his role in the offense. See Rodriguez , 602 F.3d at 362. As Orozco has not shown that the guidelines range was improperly calculated, he has not shown any procedural error. See Gall , 552 U.S. at 51. Orozco al s o contends that his sentence was substantively unreasonable because it was greater th a n n e c e ssary under § 3553(a). He correctly acknowledges tha t h i s f a i lure to object to his sentence in the district court results in plain error review. See United States v. Peltier , 505 F.3d 389, 391-92 (5th Cir. 2007). “[A] senten c e w i thin a properly calculated Guideline range is presumptively reasonable.” United States v. Alonzo , 435 F.3d 551, 554 (5th Cir. 2006). 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 judgment in balancing sentencing factors.” United States v. Cooks , 589 F.3d 173, 186 (5th Cir. 2009). The district court heard Orozco’s sentencing arguments, granted an objection that resulted in a lower guidelines range, a n d i m posed a sentence at the low end of that range. Other than his arguments regarding a reduction for his role in the offense, Orozco merely repeats the s a m e a r gu m ents for a lesser sentence that he raised in the district court; thus, he is asking us to reweigh the di s t rict court’s consideration of the § 3553(a) factors, which we decline to do. “The fact that the appellate court might reasonabl y h av e concluded that a different sentence was appropriate is insufficient to justify reversal of the district court.” Gall , 552 U.S. at 51. Orozco has not rebutted the presumption that the sentence is reasonable or established plain error. See United States v. Ruiz , 621 F.3d 390, 398 (5th Cir. 201 0). AFFIRMED.

3 Case: 11-50987 Document: 00511904087 Page: 3 Date Filed: 06/28/2012