United States v. Santizo-Escobedo ( 2023 )

Case: 22-50101 Document: 00516617315 Page: 1 Date Filed: 01/19/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-50101
Summary Calendar FILED
____________ January 19, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Ludwin Artemio Santizo-Escobedo,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:19-CR-2886-1
______________________________
Before Higginbotham, Graves, and Ho, Circuit Judges.
Per Curiam: *
Ludwin Artemio Santizo-Escobedo appeals his 90-month
within-guidelines sentence following his jury trial conviction for assaulting a
federal officer with a dangerous weapon. He argues first that the district
court erred in denying him a downward departure under U.S.S.G. § 5K2.12
for coercion or duress, given the facts of this case. However, as the
Government correctly argues, we lack jurisdiction to review that denial
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-50101 Document: 00516617315 Page: 2 Date Filed: 01/19/2023
No. 22-50101
because nothing in the record indicates that the court mistakenly believed
that it lacked the authority to depart downward. See United States v. Alaniz,
726 F.3d 586, 627 (5th Cir. 2013).
Next, Santizo-Escobedo contends that his sentence is greater than
necessary under 18 U.S.C. § 3553(a) and thus substantively unreasonable.
We review the substantive reasonableness of his sentence for abuse of
discretion because he preserved this argument in the district court, and we
apply a presumption of reasonableness to his within-guidelines sentence. See
Holguin-Hernandez v. United States, 140 S. Ct. 762, 766-67 (2020); United
States v. Naidoo, 995 F.3d 367, 382 (5th Cir. 2021). The record reflects that
the district court considered his history and characteristics at sentencing,
including his lack of criminal history, and his argument essentially asks us to
reweigh those factors, which we will not do. See United States v. Martinez,
921 F.3d 452, 483 (5th Cir. 2019). We have also rejected the argument that
a sentence under a guidelines provision that is not based on empirical data is
substantively unreasonable. See United States v. Miller, 665 F.3d 114, 119-21
(5th Cir. 2011). Further, as Santizo-Escobedo correctly concedes, his
argument that we should not apply our usual presumption of reasonableness
to his within-guidelines sentence is foreclosed. See United States v.
Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009). In sum, he has
not rebutted the presumption that his within-guidelines sentence is
reasonable. See Naidoo, 995 F.3d at 382.
AFFIRMED.
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