IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-50752

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

ANTONIO MURO, JR.,

Defendant - Appellant

Appeals from the United States District Court

for the Western District of Texas

USDC No. 4:17-CR-359-2

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

In United States v. Muro, our court upheld appellant’s sentence of 66-

months’ imprisonment. 765 F. App’x 57, 58 (5th Cir. 2019) (per curiam), 

vacated, No. 18-9164, 2020 WL 981780 (U.S. 2 Mar. 2020). As relevant here, 

we held, pursuant to United States v. Peltier, 505 F.3d 389, 391–92 (5th Cir. 

* 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

April 23, 2020

Lyle W. Cayce

Clerk

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2007), that review was only for plain error because, at his sentencing hearing, 

appellant “did not object to his imposed sentence”. Muro, 765 F. App’x at 57. 

(In his opening brief on appeal, Muro recognized our binding precedent, but 

urged review should not be for plain error, raising this standard-of-review 

issue to preserve it for possible further review.) 

On 26 February 2020, however, the Supreme Court, in HolguinHernandez v. United States, held “defendant’s district-court argument for a 

specific sentence . . . preserved his claim on appeal that [his] . . . sentence was 

unreasonably long”. 140 S. Ct. 762, 764 (2020). Moreover, the Court noted 

“that reasonableness is the label we have given to the familiar abuse-ofdiscretion standard that applies to appellate review of the trial court’s 

sentencing decision” and reiterated that 

[a] defendant who, by advocating for a particular sentence, 

communicates to the trial judge his view that a longer sentence is 

greater than necessary has thereby informed the court of the legal 

error at issue in an appellate challenge to the substantive 

reasonableness of the sentence. He need not also refer to the 

standard of review.

Id. at 766–67 (emphasis in original) (internal quotation marks and citations 

omitted).

As a result, the Court, for the case at hand, granted certiorari, vacated

our judgment, and remanded to our court “for further consideration in light of 

Holguin-Hernandez”, with the Court’s judgment’s being entered on 2 March 

2020. Muro v. United States, No. 18-9164, 2020 WL 981780, at *1 (U.S. 2 Mar. 

2020). Accordingly, this opinion is substituted for our prior opinion in this 

appeal. 

Antonio Muro, Jr., challenges the 66-month within-Sentencing 

Guidelines sentence imposed after he pleaded guilty to aiding and abetting 

possession, with intent to distribute, 100 kilograms or more, but less than 1000 

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kilograms, of marihuana, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. 

§ 2. He asserts: his sentence is substantively unreasonable; and, in that 

regard, the district court should instead have imposed the statutory minimum 

sentence of 60 months, which was also within the advisory Guidelines 

sentencing range. Along that line, Muro contends the court should have 

considered the lower likelihood of recidivism in the light of his age, his difficult 

childhood, his steady work history, and the needs of his family. Although Muro 

acknowledges his offense was serious, he claims the crime’s not involving

violence or a weapon meant there was no need for an additional six months to

protect the public. According to Muro, the time above the statutory minimum 

was imposed solely for the purpose of punishment.

Although post-Booker, the Guidelines are advisory only, the district 

court must avoid significant procedural error, such as improperly calculating 

the Guidelines sentencing range. Gall v. United States, 552 U.S. 38, 46, 51 

(2007). If no such procedural error exists, a properly preserved objection to an 

ultimate sentence is reviewed for substantive reasonableness under an abuseof-discretion standard. Id. at 51; United States v. Delgado-Martinez, 564 F.3d 

750, 751–53 (5th Cir. 2009). In that respect, for issues preserved in district 

court, its application of the Guidelines is reviewed de novo; its factual findings, 

only for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 

764 (5th Cir. 2008).

At his sentencing hearing, Muro did not formally object to the 

substantive reasonableness of his sentence after it was imposed. Prior to 

sentence being imposed, but after the court announced Muro’s advisory 

Guidelines sentencing range was 60–71-months’ imprisonment, however, 

Muro stated during his allocution: “You know, I just wish to get the lowest 

time possible so I can go home and go back to work”. We assume, for purposes 

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of this appeal, that Muro’s statement satisfied the Court’s requirements in 

Holguin-Hernandez for preserving his substantive-reasonableness challenge.

Even so, Muro’s within-Guidelines sentence is entitled to a presumption 

of reasonableness. E.g., United States v. Hernandez, 876 F.3d 161, 166 (5th 

Cir. 2017) (per curiam) (citation omitted). “[T]his presumption is rebutted only 

if the appellant demonstrates that the sentence does not account for a factor 

that should receive significant weight, gives significant weight to an irrelevant 

or improper factor, or represents a clear error of judgment in balancing 

sentencing factors” listed in 18 U.S.C. § 3553(a). Id. (citation omitted). Along 

that line, our court’s “review is highly deferential, because the sentencing court 

is in a better position to find facts and judge their import under the § 3553(a) 

factors with respect to a particular defendant”. Id. (internal quotation marks 

and citation omitted).

Muro’s speculative belief the court relied solely on punishment to reach 

his 66-month sentence, combined with his general assertion that his favorable 

personal factors outweighed the seriousness of the offense, reflect his

disagreement with the court’s weighing of the 18 U.S.C. § 3553(a) factors and 

“amount[] to a request that we reweigh the sentencing factors and substitute 

our judgment for that of the district court, which we will not do”. See id. at 167 

(citation omitted). In short, Muro has not rebutted the presumption of 

reasonableness afforded his within-Guidelines sentence. See id.

AFFIRMED.

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