     Case: 19-10236      Document: 00515222240         Page: 1    Date Filed: 12/04/2019




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

                                                                               FILED
                                                                          December 4, 2019
                                    No. 19-10236
                                  Summary Calendar                          Lyle W. Cayce
                                                                                 Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

INOCENTE RODRIGUEZ-JUAREZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:18-CR-223-1


Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.
PER CURIAM: *
       Inocente Rodriguez-Juarez appeals the 57-month, within-guidelines
prison sentence imposed following his conviction for illegal reentry.                   He
contends that his sentence is substantively unreasonable because the district
court failed to accord sufficient weight to the fact that the Government did not
commence prosecution until after he was convicted in state court of felony
driving while intoxicated and was released on parole. Although Rodriguez-


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-10236     Document: 00515222240     Page: 2   Date Filed: 12/04/2019


                                  No. 19-10236

Juarez also contends that his prison sentence and three-year supervised
release term are unconstitutional because they exceed the statutory maximum
charged in the indictment, he concedes that the argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 226-27 (1998), and he raises
the issue solely to preserve it for further review.
      We generally review a sentence for reasonableness, under an abuse-of-
discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). The district
court must correctly calculate the guidelines range and make an individualized
assessment based on the facts of the case in light of the factors set forth in 18
U.S.C. § 3553(a). Id. at 49-50. The court shall impose a sentence sufficient,
but not greater than necessary, to comply with § 3553(a)(2)’s goals. § 3553(a).
Where, as here, the district court imposes a sentence within a properly
calculated guidelines range, the sentence is entitled to a rebuttable
presumption of reasonableness. United States v. Rashad, 687 F.3d 637, 644
(5th Cir. 2012). “The presumption is rebutted only upon a showing that the
sentence does not account for a factor that should receive significant weight, it
gives significant weight to an irrelevant or improper factor, or it represents a
clear error of judgment in balancing sentencing factors.” United States v.
Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
      The record reflects that the court considered the mitigating evidence
presented by Rodriguez-Juarez, including the fact that he would not receive
credit against his federal sentence for time spent in state custody and his
detention on an immigration detainer. The court ultimately elected not to
impose an upward variance, as it had been inclined to do based on Rodriguez-
Juarez’s multiple convictions for driving while intoxicated, and ordered that
the federal sentence run concurrently to any future prison term that may be
imposed if the State were to revoke Rodriguez-Juarez’s parole. Rodriguez-



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                                No. 19-10236

Juarez therefore has not shown that the district court abused its discretion in
weighing or balancing the sentencing factors. See Cooks, 589 F.3d at 186.
Accordingly, Rodriguez-Juarez fails to rebut the presumptive reasonableness
of his within-Guidelines sentence. See Rashad, 687 F.3d at 644. The judgment
of the district court is thus AFFIRMED.




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