     Case: 13-11300      Document: 00512786785         Page: 1    Date Filed: 09/30/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-11300
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        September 30, 2014
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

RUDY AYALA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:13-CR-83-1


Before JONES, BENAVIDES, and GRAVES, Circuit Judges.
PER CURIAM: *
       Rudy Ayala appeals his guilty plea conviction of possession of counterfeit
postal keys and the 120-month, above-guidelines sentence imposed by the
district court. He argues that the district court improperly participated in the
plea negotiations and that his sentence is procedurally and substantively
unreasonable.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-11300     Document: 00512786785    Page: 2   Date Filed: 09/30/2014


                                 No. 13-11300

      Ayala did not raise his claims below. Consequently, we review his claims
for plain error. See Puckett v. United States, 556 U.S. 129, 135 (2009).
      The district court did not engage in plea negotiations when it rejected
Ayala’s initial plea agreement; rather, it properly stated its reasons for
rejecting the plea. See United States v. Hemphill, 748 F.3d 666, 672-73 (5th
Cir. 2014). Because the district court did not interfere in plea negotiations or
specify an acceptable plea agreement, it did not violate Federal Rule of
Criminal Procedure 11(c)(1). See United States v. Smith, 417 F.3d 483, 488
(5th Cir. 2005).
      The record reflects that the district court properly considered the
sentencing factors set forth at 18 U.S.C. § 3553(a) in imposing a sentence
outside of the guidelines range. See United States v. Brantley, 537 F.3d 347,
349-50 (5th Cir. 2008). The district court explained that the sentence was
necessary because Ayala was a danger to society due to his extensive criminal
history, which was substantially underrepresented by the guidelines range.
Thus, the district court’s reasons for the sentence were fact-specific and
consistent with the § 3553(a) factors. See United States v. Smith, 440 F.3d 704,
707 (5th Cir. 2006).
      The extent of the departure, while substantial, does not constitute error.
This court has upheld variances of similar magnitude. See United States v.
Segura, 747 F.3d 323, 326-27 (5th Cir. 2014); Smith, 417 F.3d at 491-93.
      Ayala has shown no error, plain or otherwise, by the district court.
Accordingly, the judgment is AFFIRMED.




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