* 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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-40281

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

RICARDO ROJAS-MARROQUIN, also known as Oscar Medina

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:06-CR-672-2

Before REAVLEY, DAVIS, and ELROD, Circuit Judges.

PER CURIAM:*

Ricardo Rojas-Marroquin (Rojas) appeals the 97-month sentence imposed

following his guilty plea conviction for conspiracy to possess with intent to

distribute more than 500 grams but less than five kilograms of cocaine. Rojas

argues that his sentence should be vacated as procedurally unreasonable

because at the time of sentencing the district court was precluded by this court’s

precedent from considering mitigation evidence in support of a below guidelines

United States Court of Appeals

Fifth Circuit

F I L E D

September 22, 2008

Charles R. Fulbruge III

Clerk
No. 07-40281

2

sentence. He further contends that this court’s precedent following United

States v. Booker, 543 U.S. 220 (2005), effectively made the Guidelines mandatory

and prevented the district court from considering all of the 18 U.S.C. § 3553(a)

factors. He asserts that the decisions in Rita v. United States, 127 S. Ct. 2456

(2007), Gall v. United States, 128 S. Ct. 586 (2007), and Kimbrough v. United

States, 128 S. Ct. 558 (2007), make it clear that the Guidelines “‘are only one

factor to consider when imposing [a] sentence,’” and that a district court should

impose an individualized sentence that is sufficient, but not greater than

necessary, to achieve the purposes of sentencing under § 3553(a).

This court reviews a sentencing decision for “reasonableness,” which is the

equivalent of abuse-of-discretion review. Gall, 128 S. Ct. at 594. At the

sentencing hearing, Rojas did not offer any argument or mitigation evidence to

support a downward departure. The court heard the arguments of counsel and

the comments by Rojas regarding the disputed facts contained in the

presentence report, specifically referred to circumstances affecting consideration

of the § 3553(a) factors, and concluded that a sentence within the guidelines

range was appropriate in light of those considerations. Nothing in the record

suggests that the district court was in any way inclined to deviate below the

guidelines ranges. In fact, after imposing Rojas’s within guideline sentence, the

district court specifically informed Rojas that his sentence was based on a

consideration of“allthe applicable [§] 3553(a) factors.” The district court further

informed Rojas that the 97-month sentence was a “generous sentence” given the

amount of cocaine involved, Rojas’s actions at the time of the offense, and the

way Rojas had conducted himself at the sentencing hearing. The district court’s

decision to sentence Rojas within the guidelines range is entitled to deference

and a presumption of reasonableness that Rojas has failed to overcome. See

United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006); See United States v.

Campos- Maldonado, 531 F.3d 338, 339 (5th Cir. 2008).

Accordingly, the judgment of the district court is AFFIRMED.