United States v. Gonzalez-Herrera , 265 F. App'x 339 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 14, 2008
No. 06-41214
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
GENARO GONZALEZ-HERRERA
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:06-CR-165-ALL
Before JONES, Chief Judge, and REAVLEY and PRADO, Circuit Judges.
PER CURIAM:*
Genaro Gonzalez-Herrera appeals his sentence of 168 months in prison for
distribution of methamphetamine. Because he did not raise in the district court
his argument that the Government breached the terms of the plea agreement by
failing to recommend a sentence of 120 months of imprisonment or less, we
review for plain error. See United States v. Brown, 328 F.3d 787, 790 (5th Cir.
2003). The Government did not agree to recommend a sentence below the
*
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should not be published and is not precedent except under the limited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.
No. 06-41214
guideline range, and Gonzalez-Herrera fails to establish the alleged breach. See
Untied States v. Cantu, 185 F.3d 298, 304 (5th Cir. 1999).
Gonzalez-Herrera’s argument that the presumption of reasonableness
afforded sentences within the guideline range does not apply to drug cases is
without merit. See Gall v. United States, 2007 WL 4292116, at * 7 (U.S. Dec. 10,
2007) (an appellate court may apply a presumption of reasonableness to a
sentence within a properly calculated guideline range). Contrary to Gonzalez-
Herrera’s argument that the district court’s sentencing consideration was
improperly constrained, the district court gave “both parties an opportunity to
argue for whatever sentence they deem[ed] appropriate,” and Gonzalez-Herrera’s
counsel requested a sentence at the lower end of the guideline range. Gall,
2007 WL 4292116, at *7. The district court imposed a sentence at the bottom of
the guideline range, and Gonzalez-Herrera has failed to show that the sentence
is unreasonable. See United States v. Mares, 402 F.3d 511, 518-19 (5th Cir.
2005).
AFFIRMED.
2