Case: 09-40915     Document: 00511154502          Page: 1    Date Filed: 06/25/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            June 25, 2010
                                     No. 09-40915
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

MARIA MARICELA MARTINEZ-MENDOZA,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 7:09-CR-514-1


Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
        Maria Maricela Martinez-Mendoza appeals the prison sentence she
received after pleading guilty, pursuant to a plea agreement, to being found
illegally in the United States after having been deported. The district court
granted her motion for a downward departure, finding that her criminal history
score substantially overstated the seriousness of her prior criminal conduct. The
court then imposed a 70-month sentence, which was at the bottom of 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                 No. 09-40915

resulting guidelines range.     On appeal, she argues that this sentence is
procedurally and substantively unreasonable.
      Because Martinez-Mendoza raised specific objections to the sentence in the
district court, our review is for abuse of discretion. United States v. Anderson,

, 283-84 (5th Cir. 2009). In determining whether the district court
arrived at an appropriate sentence, we first decide whether it committed any
procedural errors, including whether it failed to adequately explain the sentence.
Gall v. United States, 

, 51 (2007).         If the court’s decision is
procedurally sound, we then determine whether the sentence is substantively
reasonable. 

a within-guidelines sentence, see
United States v. Smith, 

, 707 (5th Cir. 2006); thus, we presume that
the sentence is reasonable, see United States v. Cooks, 

, 186 (5th
Cir. 2009), cert. denied, 

(Mar. 22, 2010) (No. 09-9216).
      Martinez-Mendoza      contends    that   the   sentence    is   procedurally
unreasonable because, she says, the district court did not adequately explain
how it arrived at the sentence nor did it address her argument that she should
receive a lower sentence because she has been diagnosed with cancer and
because she has 10 children, one of whom suffers from Down Syndrome. Where,
as here, the district court sentences a defendant within the guidelines range, it
need not provide a lengthy explanation of the sentence. Rita v. United States,

, 356 (2007). However, where a defendant makes a nonfrivolous
argument for a particular sentence, the district court will generally explain why
it has rejected that argument. 

. Nonetheless, it is sufficient
for a court to listen to the argument and explain that a within-guidelines
sentence is appropriate. 

      The district court twice explained that it had taken into account the
18 U.S.C. § 3553(a) factors in selecting the appropriate sentence.         It also
considered Martinez-Mendoza’s request for a below-guidelines sentences. The
court had the presentence investigation report and Martinez-Mendoza’s written

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                                 No. 09-40915

arguments for a lower sentence. Moreover, the sentencing transcript reveals
that the district court listened to Martinez-Mendoza’s arguments. When defense
counsel asked the court to take into account that Martinez-Mendoza returned
to the United States to care for her children, the court replied, “I do.” The court
recommended that Martinez-Mendoza be held at a facility where she could
receive cancer treatment, which supports the conclusion that the court
understood her medical needs. It also granted her request for a downward
departure finding that her criminal history score overrepresented the gravity of
her past conduct, which suggests that the court listened carefully to her reasons
for requesting a lower sentence, but simply rejected the argument that her
medical condition and family situation warranted a below-guidelines sentence.
Cf. United States v. Gomez-Herrera, 

, 564-65 (5th Cir. 2008)
((refusing to disturb the presumption of reasonableness where the defendant was
motivated to illegally reenter the United States in part to see his ailing father).
The district court gave a sufficient explanation for a imposing a sentence at the
bottom of the guidelines range rather than a below-guidelines sentence. Cf.
United States v. Rodriguez, 

, 525-26 (5th Cir. 2008) (finding
sufficient district court’s explanation that a within-guidelines sentence was
necessary to “‘adequately address the objectives of punishment and deterrence’”).
      Martinez-Mendoza argues that the 70-month sentence was substantively
unreasonable because, she contends, it failed to take into account her
“extraordinary motivation” for returning to the United States—the needs of her
child suffering from Down Syndrome. This argument, however, is insufficient
to rebut the presumption that her within-guidelines sentence is reasonable.
This court will not second guess the decision of district court, which acted within
its discretion in declining to impose a below-guidelines sentence on the basis of
Martinez-Mendoza’s       family   circumstances.        See   United    States     v.
Cisneros-Gutierrez, 

, 767 (5th Cir. 2008); see also 

; 

.

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   The judgment of the district court is AFFIRMED.




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