Case: 15-40154      Document: 00513212363         Page: 1    Date Filed: 09/29/2015




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

                                    No. 15-40154                                    FILED
                                  Summary Calendar                         September 29, 2015
                                                                               Lyle W. Cayce
                                                                                    Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ALVARO ZERMENO-CAMPOS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 1:13-CR-232


Before KING, OWEN, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Alvaro Zermeno-Campos appeals the 38-month below-guidelines
sentence imposed by the district court for his conviction for being found in the
United States after deportation, having been previously convicted of an
aggravated felony.          Zermeno-Campos argues that the sentence was
procedurally unreasonable because the district court failed to explain it
adequately. He also asserts that the sentence was substantively unreasonable


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-40154

because the district court failed to give proper consideration and proper weight
to all of the factors that he raised, including his motive for returning to the
United States to visit his ill mother, his limited criminal history, and his
education including some college. He further contends that the applicable
guidelines provision, U.S.S.G. § 2L1.2, does not consider the type or quantity
of drugs involved in the prior offense. In addition, he maintains that the
sentence is substantively unreasonable in light of Amendment 782 1, because if
Amendment 782 had applied to his prior drug trafficking offense, he likely
would have received a 12-level enhancement rather than a 16-level
enhancement in the instant case.
      Because Zermeno-Campos did not object to the adequacy of the district
court’s explanation in the district court, review is limited to plain error. See
United States v. Mondragon-Santiago, 

, 361 (5th Cir. 2009). The
district court considered Zermeno-Campos’s arguments, as well as the
presentence report, and the 18 U.S.C. § 3553(a) factors. The district court
granted a variance to 38 months of imprisonment based in part on Zermeno-
Campos’s military service, despite the fact that he was discharged for other
than honorable circumstances because of a pattern of misconduct. The record
indicates that the district court provided an adequate explanation for the
below-guidelines sentence. See Rita v. United States, 

, 356-57
(2007). Further, Zermeno-Campos has not shown that his substantial rights
were affected by any purported error as there is nothing in the record to
indicate that the district court would have imposed a lower sentence if it had
provided a more thorough explanation or more specifically addressed his
mitigation arguments. See 

.




      1   U.S.S.G., App. C., Amend. 782.


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                                No. 15-40154

      Zermeno-Campos also has not shown that the sentence imposed was
substantively unreasonable. The district court considered all of his arguments,
as well as the PSR and the § 3553(a) factors and determined that a below-
guidelines sentence was appropriate.        On appeal, Zermeno-Campos is
essentially asking this court to reweigh the sentencing factors.         “[T]he
sentencing judge is in a superior position to find facts and judge their import
under § 3553(a) with respect to a particular defendant.” United States v.
Campos-Maldonado, 

, 339 (5th Cir. 2008). Zermeno-Campos has
not shown that the sentence did not account for a factor that should have
received significant weight, gave significant weight to an irrelevant or
improper factor, or represented a clear error of judgment in balancing the
sentencing factors. See United States v. Smith, 

, 708 (5th Cir.
2006).   Therefore, he has not shown that the below-guidelines sentence
imposed by the district court was substantively unreasonable. See