     Case: 19-10510      Document: 00515380028         Page: 1    Date Filed: 04/13/2020




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

                                                                                 FILED
                                    No. 19-10510                              April 13, 2020
                                  Summary Calendar                            Lyle W. Cayce
                                                                                   Clerk

UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JAIME ERNESTO COCA-ORTIZ, also known as Jaime Ernesto Coca-
Marchante,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:18-CR-253-1


Before OWEN, Chief Judge, and SOUTHWICK and WILLETT, Circuit Judges.
PER CURIAM: *
       Jaime Ernesto Coca-Ortiz appeals the sentence imposed for his
conviction of illegal reentry into the United States. The district court imposed
an above-guidelines sentence of 60 months of imprisonment and two years of
supervised release. Coca-Ortiz raises three claims of error.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-10510    Document: 00515380028       Page: 2   Date Filed: 04/13/2020


                                 No. 19-10510

      First, he contends that the district court committed procedural error by
failing to address his arguments for a lesser sentence and failing to adequately
explain its reasons for the upward variance. In the district court, Coca-Ortiz
did not object to his sentence based on procedural error. He acknowledges that
our precedent requires a specific objection to preserve procedural sentencing
errors, but he argues that no such objection was necessary to preserve the
procedural errors he raises here. In accordance with our precedent, plain error
review applies to Coca-Ortiz’s claims of procedural error. See United States v.
Whitelaw, 580 F.3d 256, 259 (5th Cir. 2009); United States v. Mondragon-
Santiago, 564 F.3d 357, 361-62 (5th Cir. 2009).
      Before pronouncing its sentencing decision, the district court heard
Coca-Ortiz’s arguments in mitigation relating to his family, criminal history,
reasons for coming to the United States, and plans for the future. However,
the district court indicated that the 60-month sentence was appropriate based
on other considerations under 18 U.S.C. § 3553(a), including Coca-Ortiz’s
history of repeated immigration violations and the need to protect the public
from further crimes by him, to provide just punishment, and to afford adequate
deterrence. See § 3553(a)(1), (a)(2)(A)-(C). Coca-Ortiz has not shown that the
district court plainly erred with respect to the consideration of his mitigation
arguments and the explanation of the sentence. See United States v. Kippers,
685 F.3d 491, 498 (5th Cir. 2012).
      In his second claim of error, Coca-Ortiz challenges the substantive
reasonableness of his sentence. Coca-Ortiz’s advocacy at sentencing for a
below-guidelines sentence of 20 months of imprisonment was sufficient to
preserve this issue for appeal. See Holguin-Hernandez v. United States, No.
18-7739, 2020 WL 908880, at *3-4 (U.S. Feb. 26, 2020).




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                                 No. 19-10510

      The 60-month prison term that was imposed constituted an upward
variance of 23 months from the top of Coca-Ortiz’s guidelines range. The
district court’s reasons for the upward variance included Coca-Ortiz’s criminal
history and history of repeatedly returning to the United States illegally after
being removed, and those reasons are supported by the record. “[O]ur review
for substantive reasonableness is highly deferential, because the sentencing
court is in a better position to find facts and judge their import under the
§ 3553(a) factors with respect to a particular defendant.” United States v.
Diehl, 775 F.3d 714, 724 (5th Cir. 2015) (internal quotation marks and citation
omitted). Giving due deference to the district court’s sentencing decision, we
conclude that Coca-Ortiz has not shown that the district court abused its
discretion with respect to the substantive reasonableness of the sentence.
      Lastly, Coca-Ortiz argues that the statutory sentencing enhancements
under 8 U.S.C. § 1326(b) are unconstitutional and that his guilty plea was
involuntary because he was not advised that the prior-felony provision of
§ 1326(b)(1) stated an essential element of his offense.       As he correctly
concedes, these arguments are foreclosed in this court by Almendarez–Torres
v. United States, 523 U.S. 224 (1998).
      AFFIRMED.




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