IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-40270

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

VICENTE RODRIGUEZ-RODRIGUEZ,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:09-CR-814-1

Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:

*

Vicente Rodriguez-Rodriguez pleaded guilty to illegal reentry into the

United States following deportation. See 8 U.S.C. § 1326(a). Rodriguez claims

that his 63-month prison sentence, which was the bottom of the properly

calculated guidelines range, is unreasonable and that he should have been

sentenced below the guidelines range as he requested. Rodriguez asserts that

the district court abused its discretion by considering factors that did not

United States Court of Appeals

Fifth Circuit

F I L E D

April 12, 2011

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. 10-40270

comport with the sentencing goals of 18 U.S.C. § 3553(a) and by failing to

consider factors that did.

Reasonableness review is bifurcated; if a review of the sentence for

procedural error reveals none, the appellate court then determines whether the

sentence is substantively reasonable. Gall v. United States, 552 U.S. 38, 51

(2007). If error has been preserved, an appellate court reviewing for

reasonableness “merely asks whether the trial court abused its discretion.” Rita

v. United States, 551 U.S. 338, 351 (2007). A court commits procedural error if

it “fail[s] to calculate (or improperly calculat[es]) the Guidelines range [or] fail[s]

to consider the § 3553(a) factors.” Gall, 552 U.S. at 51. Substantive

reasonableness is determined in light of the § 3553(a) factors. Id. at 49-50.

Rodriguez contends that the district court improperly focused on two

concerns that were “outside the § 3553(a) factors” in considering Rodriguez’s

request for a downward variance. First, Rodriguez contends that the court

discounted his request for a variance because it found that the request was not

“unusual” since Rodriguez’s attorney had “argued for a variance in every case”

that day, and that another assistant federal public defender “ha[d] done the

same thing.” Second, Rodriguez contends that the district court refused to

consider a downward variance because the Government had declined to move for

an additional downward departure for acceptance of responsibility and thus, “to

vary [would] intrude in the Government’s decision-making process.”

Rodriguez’s contentions raise concerns about whether the district court’s

sentence took into account improper factors. While “this court applies a

rebuttable presumption of reasonableness to a properly calculated,

within-guidelines sentence such as” Rodriguez’s, see United States v. Cooks, 589

F.3d 173, 186 (5th Cir. 2009), even where the sentence was based on U.S.S.G. §

2L1.2, see United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.

2009), that presumption may be rebutted “upon a showing that the sentence

does not account for a factor that should receive significant weight, it gives

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significant weight to an irrelevant or improper factor, or it represents a clear

error of judgment in balancing sentencing factors.” Cooks, 589 F.3d at 186.

However, Rodriguez has not shown that the district court gave “significant

weight” to improper factors. See id. Rather, the district court made clear that

it rejected Rodriguez’s request for a downward variance because of Rodriguez’s

personal characteristics and criminal history, and it was not improper for the

district court to consider Rodriguez’s prior felony drug conviction. See U.S.S.G.

§ 2L1.2; United States v. Duhon, 541 F.3d 391, 397 (5th Cir. 2008). Further, the

court stated that it understood that it was “not bound by the guidelines” and

could vary as it saw fit, regardless of the absence of a motion by the Government

for a downward departure for acceptance of responsibility.

Rodriguez has not rebutted the presumption of reasonableness of his

within-guidelines sentence. See Cooks, 589 F.3d at 186. Accordingly, Rodriguez

has failed to offer sufficient reason for disturbing the district court’s sentence

selection. See id.

AFFIRMED.

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