United States v. Christopher Cano

Court Case Details
Court Case Opinion

Case: 11-10800 Document: 00511789784 Page: 1 Date Filed: 03/15/2012

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

F I L E D

March 15, 2012

No. 11-10800

Summary Calendar

Lyle W. Cayce

Clerk

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

CHRISTOPHER JOHN CANO,

Defendant - Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 2:11-CR-16-2

Before BARKSDALE, STEWART, and PRADO, Circuit Judges.

*

PER CURIAM:

Following his guilty-plea conviction for conspiring to manufacture

counterfeit currency, Christopher John Cano was sentenced, inter alia, to 21-

months’ imprisonment. He challenges his sentence, contending the district court

erred: by declining to grant him a minor-participant adjustment; and by not

considering his cooperation with the Government as a basis for a downward

variance.

*

Pursuant to 5

C

.

R.

47.5, the court has determined that this opinion should not

TH

IR

be published and is not precedent except under the limited circumstances set forth in 5

C

.

TH

IR

R.

47.5.4.

Case: 11-10800 Document: 00511789784 Page: 2 Date Filed: 03/15/2012

No. 11-10800

Although post-Booker, the Sentencing Guidelines are advisory only, and

an ultimate sentence is reviewed for reasonableness under an abuse-of-

discretion standard, the district court must still properly calculate the

Guidelines-sentencing range for use in deciding the sentence to impose. Gall v.

United States, 552 U.S. 38, 51 (2007). In that respect, its application of the

Guidelines is reviewed de novo; its factual findings, only for clear error. E.g.,

United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). A

sentence within a properly calculated Guidelines-sentencing range is presumed

reasonable. E.g., United States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010).

Regarding the district court’s declining to grant Cano a minor-participant

adjustment pursuant to Guideline § 3B1.2(b), whether he was a minor

participant is a factual finding, reviewed for clear error. E.g., United States v.

Villanueva, 408 F.3d 193, 203 (5th Cir. 2005). Based upon the record as a whole,

including that Cano was one of only two indicted conspirators who purchased

and passed off the counterfeit currency at issue, the district court’s finding that

Cano was not a minor participant is plausible.

Contrary to Cano’s contention, the record indicates that the district court

did consider his cooperation with the Government but nevertheless chose not to

vary downward, based upon Cano’s extensive criminal history, as well as the

need for adequate punishment and deterrence. See 18 U.S.C. § 3553(a)(2)(A)-(C).

Essentially, Cano urges our court to engage in impermissible “substantive

second-guessing of the sentencing court”. Cisneros-Gutierrez, 517 F.3d at 767.

He fails to overcome the presumption of reasonableness afforded his sentence.

AFFIRMED.

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