Case: 15-50685 Document: 00513599248 Page: 1 Date Filed: 07/19/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-50685
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
July 19, 2016
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
RODOLFO BORJA,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:14-CR-1586-1
Before DAVIS, BENAVIDES, and OWEN, Circuit Judges.
PER CURIAM: *
Rodolfo Borja pleaded guilty to conspiracy to possess with intent to
distribute 500 grams or more but less than five kilograms of cocaine and was
sentenced to five years of probation. He now appeals his above-guidelines
sentence of 36 months of imprisonment imposed upon the revocation of his
probation. See 18 U.S.C. § 3565. Because Borja did not raise his procedural
arguments in the district court and did not object to the substantive
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 15-50685
reasonableness of his sentence, we review for plain error. See United States v.
Warren, 720 F.3d 321, 326, 332 (5th Cir. 2013).
We reject Borja’s claim that the district court committed procedural error
by relying on the bare allegations set forth in the revocation petition. Borja
had his case placed on the uncontested docket, and he did not object to the
admission of the petition into the evidence or challenge the allegations
contained therein. The petition detailed the offenses forming the basis for the
revocation, including recitations of statements from the responding officer, the
victim, and a witness. The information contained in the petition had sufficient
indicia of reliability and, thus, the district court did not commit error, plain or
otherwise, by making factual findings based upon it. See United States v.
Nava, 624 F.3d 226, 230-31 (5th Cir. 2010); United States v. Manthei, 913 F.2d
1130, 1138 (5th Cir. 1990).
The district court considered Borja’s request for a within-guidelines
sentence, including mitigating factors, and clearly explained its reasons for
sentencing him above that range. Therefore, Borja has not shown any
procedural error related to the district court’s explanation for imposing an
above-guidelines sentence. See Rita v. United States, 551 U.S. 338, 356-59
(2007); United States v. Whitelaw, 580 F.3d 256, 261-62 (5th Cir. 2009).
Finally, we find meritless the claim that Borja’s sentence was
substantively unreasonable because the district court erroneously took into
account or afforded too much weight to a 18 U.S.C. § 3553(a) sentencing factor
or his previous sentence of probation. The district court did not err by citing
the need to promote respect for the law or to provide just punishment when
sentencing Borja. See United States v. Kippers, 685 F.3d 491, 497-98 & n.4
(5th Cir. 2012). Moreover, to the extent that the district court relied upon the
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No. 15-50685
leniency of his previous sentence of probation, that consideration did not
constitute error. Id. at 499.
The judgment of the district court is AFFIRMED.
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