United States v. Moises Miller , 544 F. App'x 364 ( 2013 )

Case: 12-50884 Document: 00512236958 Page: 1 Date Filed: 05/09/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 9, 2013
No. 12-50884
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MOISES DANIEL MILLER,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:12-CR-300-1
Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
Moises Daniel Miller appeals the 18-month within-guidelines sentence he
received following his plea of guilty to importation of marijuana and possession
with intent to distribute marijuana. Miller argues that his sentence is greater
than necessary to meet the sentencing goals of 18 U.S.C. § 3553(a). He
specifically contends that the district court failed to consider the fact that he
committed the offense while under duress and that his motives were benign.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-50884 Document: 00512236958 Page: 2 Date Filed: 05/09/2013
No. 12-50884
The district court must correctly calculate the guidelines range and make
an individualized assessment based on the facts of the case in light of 18 U.S.C.
§ 3553(a). Gall v. United States, 552 U.S. 38, 49-50 (2007). The court shall
impose a sentence sufficient, but not greater than necessary, to comply with
§ 3553(a)(2)’s goals. § 3553(a). Appellate courts typically review a sentence for
reasonableness under an abuse of discretion standard. Gall, 552 U.S. at 51. If
the sentence is procedurally sound, the appellate court considers the substantive
reasonableness of the sentence. Id. The instant appeal does not involve the
procedural reasonableness of the sentence.
Miller’s 18-month sentence was within the advisory guidelines range and
thus carries a rebuttable presumption of reasonableness. See United States v.
Newson, 515 F.3d 374, 379 (5th Cir. 2008). Contrary to Miller’s assertions, the
sentencing hearing reflects that the district court took into account the
circumstances surrounding Miller’s commission of the drug offense but
concluded that a within-guidelines sentence was appropriate in light of the drug
quantity and Miller’s heedless actions. Miller’s general disagreement with the
propriety of his sentence and the district court’s weighing of the § 3553(a) factors
is insufficient to rebut the presumption of reasonableness. See United States v.
Cooks, 589 F.3d 173, 186 (5th Cir. 2009); United States v. Gomez-Herrera, 523
F.3d 554, 565-66 (5th Cir. 2008). Consequently, the judgment of the district
court is AFFIRMED.
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