IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-40154

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ALVARO ZERMENO-CAMPOS,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 1:13-CR-232

Before KING, OWEN, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Alvaro Zermeno-Campos appeals the 38-month below-guidelines 

sentence imposed by the district court for his conviction for being found in the 

United States after deportation, having been previously convicted of an 

aggravated felony. Zermeno-Campos argues that the sentence was 

procedurally unreasonable because the district court failed to explain it 

adequately. He also asserts that the sentence was substantively unreasonable 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

September 29, 2015

Lyle W. Cayce

Clerk

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No. 15-40154

2

because the district court failed to give proper consideration and proper weight 

to all of the factors that he raised, including his motive for returning to the 

United States to visit his ill mother, his limited criminal history, and his 

education including some college. He further contends that the applicable 

guidelines provision, U.S.S.G. § 2L1.2, does not consider the type or quantity 

of drugs involved in the prior offense. In addition, he maintains that the 

sentence is substantively unreasonable in light of Amendment 7821, because if 

Amendment 782 had applied to his prior drug trafficking offense, he likely 

would have received a 12-level enhancement rather than a 16-level 

enhancement in the instant case.

Because Zermeno-Campos did not object to the adequacy of the district 

court’s explanation in the district court, review is limited to plain error. See 

United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009). The 

district court considered Zermeno-Campos’s arguments, as well as the 

presentence report, and the 18 U.S.C. § 3553(a) factors. The district court 

granted a variance to 38 months of imprisonment based in part on ZermenoCampos’s military service, despite the fact that he was discharged for other 

than honorable circumstances because of a pattern of misconduct. The record 

indicates that the district court provided an adequate explanation for the 

below-guidelines sentence. See Rita v. United States, 551 U.S. 338, 356-57

(2007). Further, Zermeno-Campos has not shown that his substantial rights 

were affected by any purported error as there is nothing in the record to 

indicate that the district court would have imposed a lower sentence if it had 

provided a more thorough explanation or more specifically addressed his 

mitigation arguments. See Mondragon-Santiago, 564 F.3d at 365.

 

1 U.S.S.G., App. C., Amend. 782.

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Zermeno-Campos also has not shown that the sentence imposed was 

substantively unreasonable. The district court considered all of his arguments, 

as well as the PSR and the § 3553(a) factors and determined that a belowguidelines sentence was appropriate. On appeal, Zermeno-Campos is 

essentially asking this court to reweigh the sentencing factors. “[T]he 

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). Zermeno-Campos has 

not shown that the sentence did not account for a factor that should have 

received significant weight, gave significant weight to an irrelevant or 

improper factor, or represented a clear error of judgment in balancing the 

sentencing factors. See United States v. Smith, 440 F.3d 704, 708 (5th Cir. 

2006). Therefore, he has not shown that the below-guidelines sentence 

imposed by the district court was substantively unreasonable. See id.

AFFIRMED.

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