United States v. Gonzalez-Herrera
Opinion
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 guideline range, and Gonzalez-Herrera fails to establish the alleged breach. See United 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, — U.S. ——, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (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, 128 S.Ct. at 596. 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.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff-Appellee v. Genaro GONZALEZ-HERRERA, Defendant-Appellant
- Status
- Unpublished