Case: 20-50273 Document: 00516186286 Page: 1 Date Filed: 01/31/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
January 31, 2022
No. 20-50273
Lyle W. Cayce
Summary Calendar
Clerk
United States of America,
Plaintiff—Appellee,
versus
Roberto Padilla Espinoza,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:19-CR-214-1
Before Owen, Chief Judge, and Smith and Elrod, Circuit Judges.
Per Curiam:*
Roberto Padilla Espinoza pleaded guilty to conspiracy to possess with
intent to distribute five grams or more of actual methamphetamine. The
district court sentenced him within the advisory guidelines range to 162
months of imprisonment.
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-50273 Document: 00516186286 Page: 2 Date Filed: 01/31/2022
No. 20-50273
The parties dispute whether the waiver of appeal provision in the plea
agreement Espinoza signed should preclude us from addressing the merits of
his arguments. The issue whether a waiver bars an appeal is not
jurisdictional. United States v. Story, 439 F.3d 226, 230-31 (5th Cir. 2006).
Therefore, we will pretermit this issue.
Espinoza argues that the district court procedurally erred in assessing
six criminal history points under U.S.S.G. § 4A1.1(c) because a defendant
can receive no more than four points under that Guideline. Because Espinoza
failed to raise this argument in the district court, plain error review applies.
See Puckett v. United States, 556 U.S. 129, 135 (2009). The district court did
not err, plainly or otherwise, in calculating the criminal history score because
the district court did not assess more than four points under § 4A1.1(c). See
id.
Finally, Espinoza argues that his sentence was substantively
unreasonable because the district court sentenced him at the high end of the
guidelines range based on unscored convictions. We need not decide
whether our review is limited to plain error because Espinoza cannot prevail
even on abuse of discretion review. See United States v. Holguin-Hernandez,
955 F.3d 519, 520 n.1 (5th Cir. 2020) (opinion on remand) (per curiam).
A properly calculated sentence within the guidelines range “is
presumptively reasonable, and this presumption is rebutted only if the
appellant demonstrates that the sentence does not account for a factor that
should receive significant weight, gives significant weight to an irrelevant or
improper factor, or represents a clear error of judgment in balancing
sentencing factors.” United States v. Hernandez, 876 F.3d 161, 166 (5th Cir.
2017) (per curiam). The district court heard arguments for a sentence at the
low end of the guidelines range and considered the 18 U.S.C. § 3553(a)
factors. The district court was free to consider Espinoza’s prior uncounted
2
Case: 20-50273 Document: 00516186286 Page: 3 Date Filed: 01/31/2022
No. 20-50273
convictions. See United States v. Lopez-Velasquez, 526 F.3d 804, 805-08 (5th
Cir. 2008) (per curiam); United States v. Zuniga-Peralta, 442 F.3d 345, 347-
48 (5th Cir. 2006). Thus, the district court did not give weight to an
improper or irrelevant factor. See Hernandez, 876 F.3d at 166. Because
Espinoza has not rebutted the presumption that his within-guidelines
sentence is reasonable, he has not shown that the district court abused its
discretion in sentencing him to 162 months of imprisonment. See id. at 166-
67.
The judgment of the district court is AFFIRMED.
3