Case: 18-10284 Document: 00514784871 Page: 1 Date Filed: 01/07/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-10284
FILED
January 7, 2019
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
CESAR LOPEZ-RODRIGUEZ,
Defendant-Appellant
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 4:17-CR-141-1
Before DAVIS, HAYNES, and GRAVES, Circuit Judges.
PER CURIAM: *
Cesar Lopez-Rodriguez appeals his above-guidelines sentence of 24
months and three years of supervised release following his guilty plea
conviction for illegal reentry after deportation. He argues that the sentence is
substantively unreasonable and greater than necessary to achieve the
sentencing goals of 18 U.S.C. § 3553(a) because the district court failed to take
into account that all of his prior criminal offenses were committed when he was
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 18-10284 Document: 00514784871 Page: 2 Date Filed: 01/07/2019
No. 18-10284
17 to 18 years old; the district court gave too much weight to an erroneous
finding that his remaining criminal offenses were committed when he was 21
years old; and the district court failed to account for the fact that all of his prior
criminal offenses occurred over 20 years ago.
The district court did not abuse its discretion in imposing the upward
variance. See United States v. Diehl, 775 F.3d 714, 724 (5th Cir. 2015). The
court considered defense counsel’s arguments and Lopez-Rodriguez’s
allocution and determined that the upward variance was appropriate based on
the § 3553(a) factors, as well as his “disturbing criminal history.” The district
court did not err in relying on Lopez-Rodriguez’s prior criminal history in
varying upward from the guidelines range. See United States v. Fraga, 704
F.3d 432, 440 (5th Cir. 2013). Contrary to Lopez-Rodriguez’s argument, the
record reflects that after the Government noted that he committed two of the
offenses when he was 17 years old, the district court acknowledged that those
offenses were not used to calculate his criminal history. The district court then
considered Lopez-Rodriguez’s correct age at the time of the offenses that were
used to calculate his criminal history and expressly stated that the facts
concerning his age did not change the court’s determination concerning the
appropriate sentence.
Lopez-Rodriguez’s argument amounts to a disagreement with the
district court’s weighing of the sentencing factors, which “is not a sufficient
ground for reversal.” United States v. Malone, 828 F.3d 331, 342 (5th Cir.
2016). He has not shown the district court failed to consider any significant
factors, gave undue weight to any improper factor, or clearly erred in balancing
the sentencing factors. See Diehl, 775 F.3d at 724. Further, the eight-month
variance imposed in Lopez-Rodriguez’s case was within the range of other
variances affirmed by this court. See United States v. Hebert, 813 F.3d 551,
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No. 18-10284
561-63 (5th Cir. 2015); United States v. Mejia-Huerta, 480 F.3d 713, 717, 723
(5th Cir. 2007).
In addition, Lopez-Rodriguez argues that the indictment charged him
with illegal reentry under 8 U.S.C. § 1326(a) and that his three-year term of
supervised release exceeds the one-year maximum term of supervised release
under § 1326(a) in violation of his due process rights. As he correctly concedes,
this issue is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224
(1998). See United States v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014); United
States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007).
AFFIRMED.
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