     Case: 16-10209      Document: 00513764002         Page: 1    Date Filed: 11/17/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                    No. 16-10209                                FILED
                                  Summary Calendar                      November 17, 2016
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JAIME IVAN GRIMALDO-CRUZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:15-CR-213-1


Before KING, GRAVES, and COSTA, Circuit Judges.
PER CURIAM: *
       Jaime Ivan Grimaldo-Cruz appeals the 24-month above-guidelines
sentence imposed in connection with his conviction for illegal reentry after
deportation. Grimaldo-Cruz challenges the substantive reasonableness of his
sentence. He contends that the court based its reason for the variance on
inaccurate information. Specifically, Grimaldo-Cruz asserts that the record
showed he was not deported on two occasions; rather, he was allowed voluntary


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-10209

departure on one occasion and was deported once.          He also disputes the
assertion in the Presentence Report (PSR) that he had three illegal entries into
the United States. We need not resolve the question on the standard of review
because, as discussed below, Grimaldo-Cruz’s argument fails under any
standard. See United States v. Rodriguez, 523 F.3d 519, 525-26 & n.1 (5th Cir.
2008).
      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 18 U.S.C. 3553(a) support the
sentence.” United States v. Gerezano-Rosales, 692 F.3d 393, 400 (5th Cir. 2012)
(internal quotation marks and citation omitted). Though the PSR stated that
Grimaldo-Cruz had illegally entered the United States “at least three times,”
the PSR did not state that those entries resulted in convictions. He does not
dispute that he was in the country illegally before his voluntary departure.
Grimaldo-Cruz was granted voluntary departure by an immigration judge in
November 2011. He unlawfully reentered in January 2015 and was ordered
removed by an immigration judge in March 2015. In connection with the
instant conviction, Grimaldo-Cruz admitted to illegally reentering the United
States after his March 2015 deportation. Thus, Grimaldo-Cruz fails to show
that the information regarding the number of his illegal entries is inaccurate.
See United States v. Alaniz, 726 F.3d 586, 619 (5th Cir. 2013).
      Grimaldo-Cruz left this country on two occasions after being placed in
deportation proceedings. Though he was granted voluntary departure on one
occasion and was ordered removed on the other occasion, both departures
resulted after deportation proceedings commenced.         The court’s statement
regarding Grimaldo-Cruz’s removals indicated that it was concerned with



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                                  No. 16-10209

Grimaldo-Cruz continuing to enter the country illegally.         In imposing the
above-guidelines sentence, the court also expressed concern with Grimaldo-
Cruz’s membership in a criminal gang.              Under the totality of the
circumstances, including the significant deference that is given to the district
court’s consideration of the § 3553(a) factors and the district court’s reasons for
its sentencing decision, Grimaldo-Cruz fails to show that his 24-month
sentence is substantively unreasonable. See Gerezano-Rosales, 692 F.3d at
400-01.
      The judgment of the district court is AFFIRMED.




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