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

No. 12-40157 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. ELDA ELIZABETH RODRIGUEZ, Defendant-Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 7:10-CR-1033-1

Before REAVLEY, DAVIS, and OWEN, Circuit Judges. PER CURIAM: * Elda Elizabeth Rodriguez pleaded guilty to knowingly making a false statement to a firearm dealer, in violation of 18 U.S.C. § 924(a)(1)(A), and wa s sentenced to 37 months of imprisonment and three years of supervised release. She argues that the district court erred b y applying the enhancements in U.S.S.G. § 2K2.1, that the sentence is substantively unreasonable because her codefendant received a l o w e r sentence, and that the district court 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 Octob er 22 , 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 for th in 5 T H C IR

. R. 47.5 .4. Case: 12-40157 Document: 00512028311 Page: 1 Date Filed: 10/22/2012No. 12-40157

unconstitutionally relied on facts not proved beyon d a reasonable doubt in imposing sentence. Section 2K2.1 was not used to c a l c u late Rodriguez’s offense level; Rodriguez’s offense level w a s calculated using the cross-reference in § 2M5.2. This claim of error presents no issue f o r appeal as it is based on an erroneous reading of the record. R o dri gu e z did not object to the substantive reasonableness of the senten c e . There f o r e , this claim of error is reviewed for plain error. See United States v. Peltier , 505 F.3d 389, 391 (5th Cir. 2007). Rodriguez recruited her codefendant into participating in the offense, and her codefendant purchased fewer firearms. G iv e n th e dif

f e r e n c e s i n R odriguez’s and her codefendant’s respec tiv e c u l p ab il ity , any disparity in their senten c e s was not unwarranted. See 18 U.S.C. § 3553(a)(6). Moreover, “the sentencing judge i s in a superior position to find facts and judge their import under § 3553(a) with respect to a particular defendant.” United States v. Campos-Maldonado , 531 F.3d 337, 339 (5th Cir. 2008). Rodriguez has failed to rebut the presumption of reasonableness that is accorded to her within-guidelines sentence. See United States v. Cooks , 589 F.3d 173, 186 (5th Cir. 2009). There was no error, plain or otherwise, with respect to the substantive reasonableness of her sentence. Rodriguez’s claim of consti t u t i o nal error is raised for the first time on appeal and thus is revi e wed for plain error. See United States v. Rodarte-Vasquez , 488 F.3d 316, 321 (5th Cir. 2007). The district court did not

err by enhancing Rodriguez’s sentence o n the basis of facts not proved beyond

a r e a s onable doubt because Rodrigiez was convicted and sentenced under t h e advisory sentencing regime and the facts relied on by the district court did not increase the statutory maximum sentence. See United States v. Thompson , 454 F.3d 459, 467-68 (5th Cir. 2006). There w a s n o c o nstitutional error, plain or otherwise. The judgment of the district court is AFFIRMED.
2 Case: 12-40157 Document: 00512028311 Page: 2 Date Filed: 10/22/2012