IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-40915

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

MARIA MARICELA MARTINEZ-MENDOZA,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:09-CR-514-1

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:

*

Maria Maricela Martinez-Mendoza appeals the prison sentence she

received after pleading guilty, pursuant to a plea agreement, to being found

illegally in the United States after having been deported. The district court

granted her motion for a downward departure, finding that her criminal history

score substantially overstated the seriousness of her prior criminal conduct. The

court then imposed a 70-month sentence, which was at the bottom of the

United States Court of Appeals

Fifth Circuit

F I L E D

June 25, 2010

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. 09-40915

resulting guidelines range. On appeal, she argues that this sentence is

procedurally and substantively unreasonable.

Because Martinez-Mendoza raised specific objections to the sentence in the

district court, our review is for abuse of discretion. United States v. Anderson,

560 F.3d 275, 283-84 (5th Cir. 2009). In determining whether the district court

arrived at an appropriate sentence, we first decide whether it committed any

procedural errors, including whether it failed to adequately explain the sentence.

Gall v. United States, 552 U.S. 38, 51 (2007). If the court’s decision is

procedurally sound, we then determine whether the sentence is substantively

reasonable. Id. Martinez-Mendoza received a within-guidelines sentence, see

United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006); thus, we presume that

the sentence is reasonable, see United States v. Cooks, 589 F.3d 173, 186 (5th

Cir. 2009), cert. denied, 2010 WL 637943 (Mar. 22, 2010) (No. 09-9216).

Martinez-Mendoza contends that the sentence is procedurally

unreasonable because, she says, the district court did not adequately explain

how it arrived at the sentence nor did it address her argument that she should

receive a lower sentence because she has been diagnosed with cancer and

because she has 10 children, one of whom suffers from Down Syndrome. Where,

as here, the district court sentences a defendant within the guidelines range, it

need not provide a lengthy explanation of the sentence. Rita v. United States,

551 U.S. 338, 356 (2007). However, where a defendant makes a nonfrivolous

argument for a particular sentence, the district court will generally explain why

it has rejected that argument. Rita, 551 U.S. at 357. Nonetheless, it is sufficient

for a court to listen to the argument and explain that a within-guidelines

sentence is appropriate. Id. at 357-59.

The district court twice explained that it had taken into account the

18 U.S.C. § 3553(a) factors in selecting the appropriate sentence. It also

considered Martinez-Mendoza’s request for a below-guidelines sentences. The

court had the presentence investigation report and Martinez-Mendoza’s written

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arguments for a lower sentence. Moreover, the sentencing transcript reveals

that the district court listened to Martinez-Mendoza’s arguments. When defense

counsel asked the court to take into account that Martinez-Mendoza returned

to the United States to care for her children, the court replied, “I do.” The court

recommended that Martinez-Mendoza be held at a facility where she could

receive cancer treatment, which supports the conclusion that the court

understood her medical needs. It also granted her request for a downward

departure finding that her criminal history score overrepresented the gravity of

her past conduct, which suggests that the court listened carefully to her reasons

for requesting a lower sentence, but simply rejected the argument that her

medical condition and family situation warranted a below-guidelines sentence.

Cf. United States v. Gomez-Herrera, 523 F.3d 554, 564-65 (5th Cir. 2008)

((refusing to disturb the presumption of reasonableness where the defendant was

motivated to illegally reenter the United States in part to see his ailing father).

The district court gave a sufficient explanation for a imposing a sentence at the

bottom of the guidelines range rather than a below-guidelines sentence. Cf.

United States v. Rodriguez, 523 F.3d 519, 525-26 (5th Cir. 2008) (finding

sufficient district court’s explanation that a within-guidelines sentence was

necessary to “‘adequately address the objectives of punishment and deterrence’”).

Martinez-Mendoza argues that the 70-month sentence was substantively

unreasonable because, she contends, it failed to take into account her

“extraordinary motivation” for returning to the United States—the needs of her

child suffering from Down Syndrome. This argument, however, is insufficient

to rebut the presumption that her within-guidelines sentence is reasonable.

This court will not second guess the decision of district court, which acted within

its discretion in declining to impose a below-guidelines sentence on the basis of

Martinez-Mendoza’s family circumstances. See United States v.

Cisneros-Gutierrez, 517 F.3d 751, 767 (5th Cir. 2008); see also Rodriguez, 523

F.3d at 526; Gomez-Herrera, 523 F.3d at 565-66.

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The judgment of the district court is AFFIRMED.

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