United States v. Betanzos-Centeno , 262 F. App'x 581 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 18, 2008
No. 07-40152
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
SAMUEL BETANZOS-CENTENO
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:06-CR-697-1
Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Samuel Betanzos-Centeno appeals his sentence for possession with intent
to distribute in excess of five kilograms of cocaine. Betanzos-Centeno was
sentenced within his properly calculated range under the United States
Sentencing Guidelines. Betanzos-Centeno argues that the district court erred
in imposing his sentence because it required him to overcome a legal
presumption that the guidelines range should apply or that the guidelines range
was reasonable. Betanzos-Centeno also argues that the district court erred by
*
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should not be published and is not precedent except under the limited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. 07-40152
sentencing him based on a standard of reasonableness, without proper
assessment of the factors set forth in 18 U.S.C. § 3553(a).
Because Betanzos-Centeno’s instant arguments were not presented before
the district court, they must satisfy the standards of plain error review. See
United States v. Willingham, 497 F.3d 541, 544 (5th Cir. 2007); United States v.
Hernandez-Martinez, 485 F.3d 270, 272-73 (5th Cir.), cert. denied, 128 S. Ct. 325
(2007). Betanzos-Centeno has not established plain error. In rejecting
Betanzos-Centeno’s request for a below-guidelines sentence, the district court
did not place any burden on Betanzos-Centeno to overcome a presumption in
favor of the guidelines range. His sentence was imposed with sufficient
consideration of the § 3553(a) factors and is not unreasonable. See United States
v. Mares, 402 F.3d 511, 518-19 (5th Cir. 2005); United States v. Alonzo, 435 F.3d
551, 554 (5th Cir. 2006).
Betanzos-Centeno also contends that his sentence is unreasonable because
this court’s post-Booker rulings have effectively reinstated the mandatory
guidelines regime condemned in Booker. Betanzos-Centeno concedes that this
argument is foreclosed under circuit precedent, but seeks to preserve it for
further review, citing the Supreme Court’s granting of certiorari in Gall v.
United States, 127 S. Ct. 2933 (2007), and Kimbrough v. United States, 127 S.
Ct. 2933 (2007). Both Gall and Kimbrough have now been decided, and they do
not impact this court’s review of the reasonableness of Betanzos-Centeno’s
sentence. See Gall v. United States, ___ S. Ct. ___, No. 06-7949, 2007 WL
4292116, at * 2 (Dec. 10, 2007); Kimbrough v. United States, ___ S. Ct. ___, No.
06-6330, 2007 WL 4292040 *1-2 (Dec. 10, 2007). Betanzos-Centeno’s request
that his case be held pending the Supreme Court’s decisions in Gall and
Kimbrough is DENIED.
The judgment of the district court is AFFIRMED.
2