United States v. Gonzalez

* 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this opinion should not be published and is not precedent except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
F I L E D
March 15, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-10771
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NICOLAS GONZALEZ, JR.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:05-CR-267-1
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Before DeMOSS, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*

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No. 06-10771
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Nicolas Gonzalez, Jr., appeals the sentence imposed
following his guilty-plea conviction for possession with the
intent to distribute cocaine. He argues that the district
court misapplied U.S.S.G. § 3B1.2 when it adopted the
probation officer’s determination that he should be denied
a minor-role reduction. He asserts that the probation
officer’s evaluation of his role was based solely on a
comparison of his culpability to that of his codefendant, and
that such was error because the probation officer was
required to compare his culpability “to all those actually
involved in the offense, not merely to those who were
formally charged.” Our review of the district court’s
interpretation and application of the Sentencing Guidelines
is de novo. See United States v. Villegas, 404 F.3d 355,
358-62 (5th Cir. 2005); FED. R. CRIM. P. 51(b).

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No. 06-10771
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A fair reading of the entirety of the probation officer’s
response reflects that the probation officer was not
restricting his comparison of Gonzalez’s conduct to that of
his codefendant. Rather, the probation officer was
emphasizing that regardless of any other person’s
involvement in the conspiracy, Gonzalez was not less
culpable than the codefendant, and thus not less culpable
than the average participant. Gonzalez’s argument that the
district court misapplied § 3B1.2 is thus without merit.
Gonzalez also argues that the sentence imposed by the
district court was not reasonable. Although he concedes
that his sentence is to be reviewed for reasonableness
under this court’s precedent, Gonzalez also asserts that the
p r e s u m p t i o n - o f - r e a s o n a b l e n e s s s t a n d a r d i s
unconstitutional. This court is bound by the precedent of
previous panels absent “an intervening Supreme Court case

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No. 06-10771
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explicitly or implicitly overruling that prior precedent.”
United States v. Short, 181 F.3d 620, 624 (5th Cir. 1999).
Accordingly, Gonzalez’s sentence is reviewed for
reasonableness. United States v. Mares, 402 F.3d 511, 520
(5th Cir.), cert. denied, 126 S. Ct. 43 (2005). “If the
sentencing judge exercises her discretion to impose a
sentence within a properly calculated Guideline range, in
our reasonableness review we will infer that the judge has
considered all the factors for a fair sentence set forth in the
Guidelines.” Id. at 519. “[A] sentence within a properly
calculated Guideline range is presumptively reasonable.”
United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).
While Gonzalez’s assertions could possibly support a
decision to impose a sentence below the applicable
guideline range, they do not show that the sentence within
the guidelines range was unreasonable. See id. at 554-55.

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No. 06-10771
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Gonzalez’s sentence is presumed to be reasonable, and he
has failed to rebut that presumption. See id. Accordingly,
the sentence is AFFIRMED.

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