IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-50470

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

GUSTAVO ZAPATA-OCHOA,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 2:15-CR-1346-1

Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Gustavo Zapata-Ochoa appeals the withinguidelines sentence imposed following his jury conviction for possession and 

conspiracy to possess with intent to distribute 50 grams or more of 

methamphetamine. He argues that his sentence was substantively 

unreasonable because it was greater than necessary to effectuate the 

sentencing goals of 18 U.S.C. § 3553(a). He asserts that the sentence was 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

March 5, 2018

Lyle W. Cayce

Clerk

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No. 17-50470

2

greater than necessary (1) to reflect the seriousness of his involvement in the 

offense because his codefendant was the leader and primary offender and (2) 

to provide adequate deterrence because the subject offense was his first drugtrafficking offense. He also contends that the district court failed to give 

adequate weight to the fact that he was motivated to commit the instant 

offense—illegally smuggling drugs into the U.S. from Mexico—out of a desire 

to see his family members who currently reside in the U.S.

Zapata-Ochoa objected to the substantive reasonableness of his sentence 

in the district court, so our review is for abuse of discretion. Gall v. United 

States, 552 U.S. 38, 51 (2007). “A discretionary sentence imposed within a 

properly calculated guidelines range is presumptively reasonable.” United 

States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2008). 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). A defendant’s “mere belief that the 

mitigating factors presented for the court’s consideration should have been 

balanced differently is insufficient to disturb this presumption.” United States 

v. Alvarado, 691 F.3d 592, 597 (5th Cir. 2012).

The district court had before it both mitigating and aggravating factors. 

After balancing these factors, it determined that a sentence near the middle of 

the guidelines range was appropriate. We see no reason to disturb the 

presumption of reasonableness in this case. See United States v. GomezHerrera, 523 F.3d 554, 565-66 (5th Cir. 2008). Considering the totality of the 

circumstances, as we must, we conclude that Zapata-Ochoa has not shown that 

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the district court’s sentence was an abuse of discretion. See Gall, 552 U.S. at 

51.

AFFIRMED.

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