IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 pleaded guilty to a single count

of conspiracy to possess with intent to distribute more than five kilograms 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.

United States Court of Appeals

Fifth Circuit

F I L E D

June 28, 2012

Lyle W. Cayce

Clerk

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. 11-50987

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

reviewed for reasonableness in light of the sentencing factors in 18 U.S.C.

§ 3553(a). United States 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 calculating) 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 explain the

chosen sentence.” Id. If there is no procedural error, the appellate court then

reviews the substantive reasonableness of the sentence under a deferential

abuse of discretion standard. Id.

Orozco’s primary argument is that the district court failed to 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 burden of 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 application of the Sentencing

Guidelines de novo and its factual findings for clear error. United States v.

Rodriguez, 602 F.3d 346, 362 (5th Cir. 2010). A factual finding regarding a

defendant’s role will be disturbed only if it is clearly erroneous. 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. See United States v. Medina-Anicacio, 325 F.3d 638, 642 (5th Cir.

2003).

Orozco clearly knew he was being paid to participate in a drug-related

conspiracy. Statements 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. Finally, other than

attempting to distinguish his lack of criminal history from his co-defendants’

criminal history, Orozco failed to demonstrate that he was entitled to the

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No. 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 also contends that his sentence was substantively unreasonable

because it was greater than necessary under § 3553(a). He correctly

acknowledges that his failure 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] sentence within 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, and imposed 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 same arguments for a lesser

sentence that he raised in the district court; thus, he is asking us to reweigh the

district court’s consideration of the § 3553(a) factors, which we decline to do.

“The fact that the appellate court might reasonably have 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. 2010).

AFFIRMED.

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