     Case: 16-11147      Document: 00514113396         Page: 1    Date Filed: 08/11/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                         United States Court of Appeals

                                    No. 16-11147
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                        August 11, 2017
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


                                                 Plaintiff–Appellee,

v.

JORGE RIOS-DIAZ, also known as Jose Diaz,

                                                 Defendant–Appellant.


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:16-CR-19-1


Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
       Jorge Rios-Diaz appeals the 36-month above-guidelines sentence
imposed in connection with his conviction for illegal reentry after deportation.
He   argues     that    the   district   court    committed      procedural         error         by
misinterpreting U.S.S.G. § 4A1.3 and U.S.S.G. § 5K2.0 when applying the
upward departure. Rios-Diaz also challenges the substantive reasonableness
of his sentence.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-11147

      The district court imposed Rios-Diaz’s sentence as a departure under the
Guidelines and alternatively as an upward variance based on the sentencing
factors of 18 U.S.C. § 3553(a). Because we may affirm the sentence as a
variance, we pretermit Rios-Diaz’s claim that the sentence is unreasonable
because the district court procedurally erred in departing based on
misinterpretations of § 4A1.3 and § 5K2.0. See United States v. Rodriguez, 523
F.3d 519, 525 (5th Cir. 2008).
      Though Rios-Diaz contends that the district court’s conclusion that an
upward variance was warranted under § 3553(a) does not indicate that the
sentence would be the same absent the error in upwardly departing, his
reliance on United States v. Ibarra-Luna, 628 F.3d 712, 717 (5th Cir. 2010), is
misplaced. Contrary to Rios-Diaz’s assertion, Ibarra-Luna does not provide
authority for requiring the Government to show that the district court would
have imposed the same sentence but for an alleged § 4A1.3 error. Rather,
Ibarra-Luna is concerned with “an incorrect Guidelines calculation.” 628 F.3d
at 717. Rios-Diaz did not object to the calculation of the guidelines range in
the district court and does not contend on appeal that there was an incorrect
calculation of the guidelines range.
      In reviewing a non-guidelines sentence for substantive reasonableness,
we consider “the totality of the circumstances, including the extent of any
variance from the Guidelines range, to determine whether as a matter of
substance, the sentencing factors in section 3553(a) support the sentence.”
United States v. Gerezano-Rosales, 692 F.3d 393, 400 (5th Cir. 2012) (internal
quotation marks and citation omitted). Although Rios-Diaz asserts that the
district court gave too much weight to his conviction for failure to identify, the
record does not support his argument. The court noted that Rios-Diaz had
been removed from the United States on three occasions and had engaged in



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                                 No. 16-11147

“some pretty bad conduct.” Though the court referenced Rios-Diaz’s failure-to-
identify conviction, the court also discussed Rios-Diaz’s multiple assaults, gang
membership, and firearm offense.        The district court relied on several
appropriate § 3553(a) factors in determining that an upward variance was
warranted, including the nature and circumstances of the offense, Rios-Diaz’s
history and characteristics, the need to promote respect for the law, the need
to provide adequate deterrence to further recidivism, and the need to protect
the public from further crimes. Thus, the decision to vary above the advisory
guidelines range was based on permissible factors that advanced the objectives
set forth in § 3553(a). See United States v. Smith, 440 F.3d 704, 707 (5th Cir.
2006).
      Additionally, although the 36-month sentence is 20 months greater than
the top of the guidelines range, we have upheld much greater variances. See,
e.g., United States v. Key, 599 F.3d 469, 475-76 (5th Cir. 2010); United States
v. Brantley, 537 F.3d 347, 348-50 (5th Cir. 2008). Based on the totality of the
circumstances, including the significant deference that is due to a district
court’s consideration of the § 3553(a) factors, the sentence imposed was
reasonable. See Gall v. United States, 552 U.S. 38, 50-53 (2007).
      Finally, Rios-Diaz concedes that his challenge to his sentence under 8
U.S.C. § 1326(b) is foreclosed by Almendarez-Torres v. United States, 523 U.S.
224, 239-47 (1998), but raises the issue to preserve it for further review. The
judgment of the district court is AFFIRMED.




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