     Case: 17-50866      Document: 00514505673         Page: 1    Date Filed: 06/08/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
                                    No. 17-50866                              June 8, 2018
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ANGEL LEOS-BELTRAN,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:16-CR-48-1


Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Angel Leos-Beltran appeals his 48-month sentence following his
conviction for illegal reentry into the United States in violation of 8 U.S.C.
§ 1326(b)(1). The district court calculated Leos-Beltran’s guidelines range as
15 to 21 months of imprisonment, and, on appeal, he challenges his sentence
as an upward departure under U.S.S.G. § 4A1.3 and, alternatively, as a
variance under 18 U.S.C. § 3553(a). There is conflicting evidence in the record


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-50866

as to the type of sentence the district court imposed, but Leos-Beltran has
failed to show any reversible error in either case.
      First, Leos-Beltran contends that the district court erred in departing
upward under § 4A1.3 because it failed to follow the requisite method of
calculating the extent of the departure. Because Leos-Beltran did not raise an
objection to the district court’s methodology under § 4A1.3(a)(4) below, our
review is for plain error only. See United States v. Hernandez-Martinez, 485
F.3d 270, 272-73 (5th Cir. 2007). To show plain error, Leos-Beltran must show
a forfeited error that is clear or obvious and that affects his substantial rights.
Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes such a showing,
this court has the discretion to correct the error but only if it seriously affects
the fairness, integrity, or public reputation of judicial proceedings. Id. To show
that a sentencing error affected his substantial rights, Leos-Beltran must
demonstrate a reasonable probability that he would have received a lesser
sentence but for the error. United States v. Davis, 602 F.3d 643, 647 (5th Cir.
2010).
      While Leos-Beltran is correct that the district court did not explicitly
follow the methodology set forth in § 4A1.3(a)(4), see United States v. Lambert,
984 F.2d 658, 662-63 (5th Cir. 1993) (en banc), even assuming arguendo a clear
or obvious error, Leos-Beltran fails to establish a reasonable probability that
he would have received a lesser sentence despite the purported error.
Importantly, there is no indication that the district court would have been
inclined to impose an imprisonment term of less than 48 months if it had
explicitly followed the methodology set forth in § 4A1.3(a)(4). The district court
gave several reasons for upwardly departing, including that Leos-Beltran used
multiple aliases and had five prior illegal reentry convictions, seven formal
deportations, and 12 other removals, all of which showed a high likelihood of
recidivism or a “likelihood that [he] will commit” the offense again.

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                                  No. 17-50866

§ 4A1.3(a)(1); see United States v. Monjaraz-Reyes, 285 F. App’x 146, 147 (5th
Cir. 2008). The district court also expressed that the 48-month sentence would
afford adequate deterrence and protect the public.          Leos-Beltran has not
satisfied his burden of showing that his substantial rights were affected by any
purported error concerning the methodology required under § 4A1.3(a)(4). See
Davis, 602 F.3d at 647.
      As for Leos-Beltran’s challenge to the district court’s sentence as an
upward variance under § 3553, we review that claim for plain error as well
because Leos-Beltran failed to raise the issue in the district court. See United
States v. Peltier, 505 F.3d 389, 392 (5th Cir. 2007). On appeal, he argues that
his 48-month sentence, viewed in light of his prior, shorter sentences for illegal
reentry, fails to meet the sentencing goal of deterrence.
      Leos-Beltran has failed to establish that the district court plainly erred
in varying upwardly from the guidelines range.             The record supports a
determination that the district court had an adequate basis for the sentence
imposed and was guided by the § 3553(a) factors in determining that an
upward variance was justified. The district court stated that it had considered
multiple § 3553(a) factors, and, notably, Leos-Beltran’s prior history consisting
of five illegal reentry convictions, seven deportations, 12 informal removals,
and the use of multiple names in the United States. Leos-Beltran’s argument
that a shorter sentence would better serve the sentencing goal of deterrence is
belied by the record, which demonstrates that his past illegal reentry
convictions, which resulted in relatively shorter prison sentences, did not, in
fact, deter him from reoffending. Additionally, his sentence, which was 27
months above the top of the applicable advisory guidelines range, was not so
disproportionate as to overcome the factors that warranted its imposition. See
United States v. Brantley, 537 F.3d 347, 348-50 (5th Cir. 2008).
      AFFIRMED.

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