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

No. 11-50756 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. CESAR RAMIREZ-GUZMAN, Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 3:11-CR-416-2

Before WIENER, STEWART, and HAYNES, Circuit Judges. PER CURIAM: * Defendant-Appellant Cesar Ramirez-Guzman appeals the concurrent 42- month within-guidelines sentences he received following his gui l ty plea to (1)

c o nspiracy to possess 50 kilograms or more of marijuana with intent t o distribute and (2) possession of 50 kilograms or more of marijuana with intent to distribut e . Ramirez-Guzman argues that his sentences were greater than necessary to meet the sentencing goals of 18 U.S.C. § 3553(a). H e s p e c i f ically contends that the guidelines sentencing range w a s too severe because the 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 April 27 , 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: 11-50756 Document: 00511837628 Page: 1 Date Filed: 04/27/2012No. 11-50756

district court did not consider his lack of criminal history, remorsefulness, and need to provide for his family, but considered the unreliable statements from an unknown cooperating source (CS). He further contends that his sentences are not entitled to a presumption of reasonableness because the drug guidelines are not empirically based. As Ramirez-Guzman did not object to the reasonableness of his sentences in the district court, review is for plain error only. See United States v. Peltier , 5 0 5 F.3d 389, 391-92 (5th Cir. 2007). Ramirez-Guzman’s reasonablen e s s arguments are unavailing. When reviewing the r e a sonableness of a sentence within a properly calculated guidelines range, we generally w i l l infer that the district court co n sidered all of the fair sentencing factors set forth in the Sentencing Guide l i n e s . U n ited States v. Mares , 402 F.3d at 511, 519 (5th Cir. 2005). The record reflects that the district court expressly cons i d e r e d t he § 3553(a) factors as well as Ramirez-Guzman’s argumen t s for mitigating his sentences but implicitly overruled them by concluding that a within-guidelines sentence was “fair and reasonable” considering the circumstanc e s of the case. See United States v. Rodriguez , 523 F.3d 519, 525 (5th Cir. 2008). In addition, the distr i c t c o u r t d id not base its decision on any statements made by the CS, but relied on statements mad e by Ramirez-Guzman himself as well as statements made by a reliable undercover agent. Accordingly, we decline R a m i r e z-Guzman’s invitation to reweigh the § 3553(a) factors because “t h e sentencing judg e i s i n a superior position to find facts and judge their import under § 3553(a) with r e s pect to a particular defendant.” United States v. Campos-Maldonado , 531 F.3d 337, 339 (5th Cir. 200 8). Fu rth e r m o r e , R a m ir e z - G u z m a n ’ s s e nt e n c e s , whic h ar e s li ghtly hi gh er th a n the middle of the guidelines range, are presumed reasonable. See United States

v. Cisneros-Gutierrez , 517 F.3d 751, 766 (5th Cir. 2008). His empirical data argument is foreclosed by our precedent. See United States v. Duarte , 569 F.3d 528, 529-31 (5th Cir. 2009); United States v. Mondragon-Santiago , 564 F.3d 357,
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366-67 n.7 (5th Cir. 2009). Moreover, his general disagreement with the propriety of his sentences and the district c o urt’s weighing of the § 3553(a) factors are insufficient to rebut the presumption of reasonableness that attaches to within-guidelines sentence. See United States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010); United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). RamirezGuzman cannot demonstrate that t h e district court committed error, plain or otherwise, by sentencing him to concurrent 42-month prison terms. See Peltier , 505 F.3d at 392-93. Accordingly, the district court’s judgment is AFFIRMED.

3 Case: 11-50756 Document: 00511837628 Page: 3 Date Filed: 04/27/2012