     Case: 18-20797      Document: 00515178149         Page: 1    Date Filed: 10/29/2019




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

                                    No. 18-20797                         FILED
                                  Summary Calendar                October 29, 2019
                                                                    Lyle W. Cayce
                                                                         Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MILTON ALBERTO RIASCOS TOVAR,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:18-CR-364-1


Before KING, GRAVES, and WILLETT, Circuit Judges.
PER CURIAM: *
       Milton Alberto Riascos Tovar (Riascos Tovar) appeals the 54-month,
above-guidelines sentence imposed following his guilty plea to illegal reentry
by a previously deported alien after a felony conviction. He argues that the
sentence was substantively unreasonable because it was greater than
necessary to achieve the sentencing goals of 18 U.S.C. § 3553(a).




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-20797     Document: 00515178149     Page: 2   Date Filed: 10/29/2019


                                  No. 18-20797

      Riascos Tovar first asserts that the district court gave significant weight
to an improper factor and violated his Fifth Amendment right against self-
incrimination when it sentenced him above the guidelines range based on his
refusal to disclose certain information to the probation officer during the
presentence interview. Specifically, he argues that the district court drew an
adverse inference at sentencing based on his failure to disclose when and
where he last entered the United States, whether he had a history of substance
abuse, and his dates of employment. Because Riascos Tovar did not object on
this basis in the district court, we review this argument for plain error. See
United States v. Ronquillo, 508 F.3d 744, 748 (5th Cir. 2007).
      In Mitchell v. United States, 526 U.S. 314, 330 (1999), on which Riascos
Tovar relies, the Supreme Court held that a sentencing court may not draw an
adverse inference from a defendant’s silence “in determining the facts of the
offense” because to do so “impose[s] an impermissible burden on the exercise
of the constitutional right against compelled self-incrimination.” But Mitchell
is inapplicable here because Riascos Tovar admitted the facts of his illegal
reentry offense, and none of the predicate facts were disputed at sentencing.
See Ronquillo, 508 F.3d at 749. Thus, the district court did not draw an
adverse inference in determining the facts of Riascos Tovar’s offense. See id.
Further, the district court explained that the failure to disclose the information
was relevant to Riascos Tovar’s history and characteristics, namely, his
deceitful nature, a proper factor under § 3553(a)(1).      Accordingly, Riascos
Tovar cannot establish error, plain or otherwise. See id. at 749, 752-53.
      Next, Riascos Tovar asserts that the above-guidelines sentence
represents a clear error of judgment in balancing the sentencing factors
because the district court gave undue weight to his criminal history and
insufficient weight to the guidelines range. Because Riascos Tovar preserved



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                                 No. 18-20797

this issue through his objection at sentencing, we review for abuse of discretion
under the totality of the circumstances. See Gall v. United States, 552 U.S. 38,
51 (2007). The record reflects that the district court properly considered the
§ 3553(a) factors. Specifically, the district court noted that Riascos Tovar had
a history of deceit based on his repeated use of aliases and false birth dates;
that his prior convictions for burglary, theft, and drug trafficking involved
significant sums of money and expensive items; and that his criminal history
was understated because he was not prosecuted for a 2007 illegal reentry. The
district court emphasized that Riascos Tovar reentered illegally shortly after a
prior deportation and that he had engaged in illegal activity in this country for
almost two decades.     Based on all this, the court opined that an above-
guidelines sentence was warranted. Under the totality of the circumstances,
the 54-month sentence was reasonable. See United States v. Brantley, 537 F.3d
347, 349 (5th Cir. 2008). Further, we have upheld similar upward variances.
See id. at 348-50; United States v. Lopez-Velasquez, 526 F.3d 804, 805, 807 (5th
Cir. 2008); United States v. Smith, 417 F.3d 483, 492-93 (5th Cir. 2005).
      AFFIRMED.




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