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United States v. Zuniga ( 2023 )


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  • Case: 22-40638        Document: 00516722257             Page: 1      Date Filed: 04/21/2023
United States Court of Appeals
for the Fifth Circuit                                        United States Court of Appeals
____________                                       Fifth Circuit
FILED
No. 22-40638                                April 21, 2023
Summary Calendar                             Lyle W. Cayce
____________                                      Clerk
United States of America,
Plaintiff—Appellee,
versus
Jesus Zuniga,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:22-CR-185-3
______________________________
Before Stewart, Duncan, and Wilson, Circuit Judges.
Per Curiam: *
Jesus Zuniga appeals the within-guideline sentence imposed following
his conviction for possession with intent to distribute more than 500 grams
of cocaine. He contends the sentence is both procedurally and substantively
unreasonable.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-40638      Document: 00516722257          Page: 2      Date Filed: 04/21/2023
No. 22-40638
Contrary to Zuniga’s assertion, his request for a downward departure
or variance did not preserve a challenge to the sufficiency of the district
court’s explanation of the sentence. See United States v. Coto-Mendoza,
    986 F.3d 583
    , 586 (5th Cir.), cert. denied,
    142 S. Ct. 207 (2021)
    . The record shows
that the district court responded to Zuniga’s arguments and provided some
explanation for his within-guideline sentence. Zuniga has not shown that
more of an explanation was required for his within-guidelines sentence. See
United States v. Mares,
    402 F.3d 511
    , 519 (5th Cir. 2005).
As for his substantive-reasonableness challenge, Zuniga preserved the
issue for appeal by moving for a downward variance. See Holguin-Hernandez
v. United States,
    140 S. Ct. 762
    , 767 (2020). At sentencing, the district court
considered the
    18 U.S.C. § 3553
    (a) factors, found that the guideline range
was appropriate, and found that a 96-month sentence was needed to protect
the public and deter further criminal conduct. While Zuniga contends that
the district court gave improper weight to the nature and circumstances of
the offense and to his criminal history because of the disparity between his
sentence and the 60-month sentence received by his co-defendant who
possessed a gun, he ignores the disparity between his and his co-defendant’s
criminal history category, which the district court explained was the driver of
Zuniga’s higher guideline range.
Zuniga has not shown that the district court considered an improper
factor, failed to consider a relevant factor, or committed a clear error of
judgment in balancing the § 3553(a) factors. See United States v. Cooks,
    589 F.3d 173
    , 186 (5th Cir. 2009). His arguments amount to a mere disagreement
with the sentence imposed, which is insufficient to support his contention
that the sentence was unreasonable. See United States v. Ruiz,
    621 F.3d 390
    ,
398 (5th Cir. 2010). He is essentially asking us to reweigh the § 3553(a)
factors, which we will not do. See Gall v. United States,
    552 U.S. 38
    , 51
(2007).   Zuniga has failed to rebut the presumption of reasonableness
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Case: 22-40638      Document: 00516722257          Page: 3   Date Filed: 04/21/2023
No. 22-40638
applicable to his within-guideline sentence and has not shown that the district
court abused its discretion. See United States v. Hernandez,
    876 F.3d 161
    , 166-
67 (5th Cir. 2017); Cooks,
    589 F.3d at 189
    .
The district court’s judgment is AFFIRMED.
3