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