IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 was

sentenced to 37 months of imprisonment and three years of supervised release. 

She argues that the district court erred by applying the enhancements in

U.S.S.G. § 2K2.1, that the sentence is substantively unreasonable because her

codefendant received a lower sentence, and that the district court

United States Court of Appeals

Fifth Circuit

F I L E D

October 22, 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.

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

unconstitutionally relied on facts not proved beyond a reasonable doubt in

imposing sentence. 

Section 2K2.1 was not used to calculate Rodriguez’s offense level;

Rodriguez’s offense level was calculated using the cross-reference in § 2M5.2. 

This claim of error presents no issue for appeal as it is based on an erroneous

reading of the record.

Rodriguez did not object to the substantive reasonableness of the sentence. 

Therefore, 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. 

Given the differences in Rodriguez’s and her codefendant’s respective culpability,

any disparity in their sentences was not unwarranted. See 18 U.S.C.

§ 3553(a)(6). Moreover, “the sentencing judge is 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 constitutional error is raised for the first time on

appeal and thus is reviewed 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 on the basis of facts not proved beyond

a reasonable doubt because Rodrigiez was convicted and sentenced under the

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 was no constitutional 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