United States v. Christopher Cano , 464 F. App'x 350 ( 2012 )

Case: 11-10800 Document: 00511789784 Page: 1 Date Filed: 03/15/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 15, 2012
No. 11-10800
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
CHRISTOPHER JOHN CANO,
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:11-CR-16-2
Before BARKSDALE, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
Following his guilty-plea conviction for conspiring to manufacture
counterfeit currency, Christopher John Cano was sentenced, inter alia, to 21-
months’ imprisonment. He challenges his sentence, contending the district court
erred: by declining to grant him a minor-participant adjustment; and by not
considering his cooperation with the Government as a basis for a downward
variance.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 11-10800 Document: 00511789784 Page: 2 Date Filed: 03/15/2012
No. 11-10800
Although post-Booker, the Sentencing 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
Guidelines-sentencing range for use in deciding 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. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). A
sentence within a properly calculated Guidelines-sentencing range is presumed
reasonable. E.g., United States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010).
Regarding the district court’s declining to grant Cano a minor-participant
adjustment pursuant to Guideline § 3B1.2(b), whether he was a minor
participant is a factual finding, reviewed for clear error. E.g., United States v.
Villanueva, 408 F.3d 193, 203 (5th Cir. 2005). Based upon the record as a whole,
including that Cano was one of only two indicted conspirators who purchased
and passed off the counterfeit currency at issue, the district court’s finding that
Cano was not a minor participant is plausible.
Contrary to Cano’s contention, the record indicates that the district court
did consider his cooperation with the Government but nevertheless chose not to
vary downward, based upon Cano’s extensive criminal history, as well as the
need for adequate punishment and deterrence. See 18 U.S.C. § 3553(a)(2)(A)-(C).
Essentially, Cano urges our court to engage in impermissible “substantive
second-guessing of the sentencing court”. Cisneros-Gutierrez, 517 F.3d at 767.
He fails to overcome the presumption of reasonableness afforded his sentence.
AFFIRMED.
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