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. 09-50832

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ELIAZAR JUAREZ,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 2:09-CR-220-1

Before JOLLY, BARKSDALE, and CLEMENT, Circuit Judges.

PER CURIAM:*

Subsequent to his guilty-plea conviction of one count of illegal reentry into

the United States following a prior deportation, Eliazar Juarez was sentenced,

inter alia, to 41 months’ imprisonment. 

Juarez challenges only the substantive reasonableness of his sentence,

asserting it was unduly harsh because the court gave his prior convictions too

much weight when considering the 18 U.S.C. § 3553(a) sentencing factors.

United States Court of Appeals

Fifth Circuit

F I L E D

June 1, 2010

Lyle W. Cayce

Clerk

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No. 09-50832

2

Arguably, Juarez failed to preserve this issue in district court. We need

not decide that question, however, because his claim fails under the abuse-ofdiscretion standard of review applied to properly preserved challenges to the

reasonableness of a sentence, as discussed below. 

Although post-Booker (2005), the Guidelines are advisory only, and an

ultimate sentence is reviewed for reasonableness under an abuse-of-discretion

standard, the district court must still properly calculate the guideline-sentencing

range for use in deciding on the sentence to impose. Gall v. United States, 552

U.S. 38, 51 (2007). In that respect, its application of the Guidelines is reviewed

de novo; its factual findings, only for clear error. E.g., United States v. CisnerosGutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United States v. Villegas, 404 F.3d

355, 359 (5th Cir. 2005). As noted, Juarez does not claim procedural error in

calculating his sentencing range. 

A properly calculated within-guidelines sentence, as in this instance, is

presumed reasonable. United States v. Armstrong, 550 F.3d 382, 405 (5th Cir.

2008), cert. denied, 130 S. Ct. 54 (2009); see also United States v. Alonzo, 435

F.3d 551, 554 (5th Cir. 2006). To rebut that presumption, Juarez must show the

district court failed to account for a sentencing factor that should have been

accorded substantial weight, gave substantial weight to an “irrelevant or

improper factor”, or made “a clear error of judgment in balancing sentencing

factors”. United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009), cert. denied,

No. 09-9216, 2010 WL 637943 (22 Mar. 2010).

Juarez has not met this standard. His claims concerning the district

court’s balancing of the § 3553(a) factors amount to a disagreement with the

district court’s weighing of these factors and the appropriateness of his withinguidelines sentence. This disagreement does not suffice to show error in

connection with his sentence. See id.; United States v. Gomez-Herrera, 523 F.3d

554, 565-66 (5th Cir. 2008) (upholding presumption of reasonableness of withinguidelines sentence where appellant claimed Guidelines overstated the

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No. 09-50832

3

seriousness of his offense). He has not shown that his sentence was

substantively unreasonable, nor has he rebutted the presumption of

reasonableness that attaches to his within-guidelines sentence. See Armstrong,

550 F.3d at 404.

AFFIRMED.

Case: 09-50832 Document: 00511127900 Page: 3 Date Filed: 06/01/2010