     Case: 16-41216      Document: 00514144726         Page: 1    Date Filed: 09/06/2017




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

                                      No. 16-41216                              FILED
                                                                         September 6, 2017
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk

                                                 Plaintiff-Appellee

v.

ROBERTO CARLOS LARA-DIAZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:16-CR-735-1


Before REAVLEY, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM: *
       Roberto Carlos Lara-Diaz pleaded guilty to being an alien unlawfully
found in the United States after a previous deportation in violation of 8 U.S.C.
§ 1326(a) and (b). The district court sentenced him to an above-guidelines
sentence of 30 months of imprisonment.
       Lara-Diaz argues that his sentence is procedurally unreasonable.
Because he did not raise this objection in the district court, we review for plain
error only. See Puckett v. United States, 556 U.S. 129, 135 (2009). To show


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-41216

plain error, Lara-Diaz must show a forfeited error that is clear or obvious and
that affects his substantial rights. See id. If he makes such a showing, we
have the discretion to correct the error but only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. See id.
      Lara-Diaz argues, and the Government concedes, that the district court
clearly or obviously erred when it failed to give notice of its intent to depart
upward from the guidelines range as required by Federal Rule of Criminal
Procedure 32(h). He has not shown that the error affected his substantial
rights because he has not shown that he would have received a lesser sentence
if the district court had given notice of such intent. See United States v. Rivera,
784 F.3d 1012, 1018 (5th Cir. 2015).
      In addition, Lara-Diaz contends that the district court did not provide
him an adequate opportunity for allocution because it interrupted his counsel
as she attempted to respond to the Government’s request for an upward
departure based on his arrest for sexual abuse. Defense counsel asked for a
sentence below the guidelines range and stressed that Lara-Diaz came back to
the United States in hopes of earning money for his daughter’s college
education. Lara-Diaz apologized for his actions and reiterated his desire to
pay for his daughter’s education.      The district court complied with Rule
32(i)(4)(A) when it provided Lara-Diaz and his counsel a meaningful
opportunity to speak and offer mitigating evidence.         See United States v.
Wright, 777 F.3d 769, 784 (5th Cir. 2015); FED. R. CRIM. P. 32(i)(4)(A).
      Lara-Diaz also argues that his sentence is procedurally unreasonable
because the district court impermissibly relied on a bare arrest record when it
sentenced him above the guidelines range. The presentence report contained
more than a bare arrest record. Because the undisputed factual account of his
arrest and conviction had an adequate evidentiary basis with sufficient indicia



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                                 No. 16-41216

of reliability, the district court did not err. See United States v. Zuniga, 720
F.3d 587, 590-91 (5th Cir. 2013); United States v. Windless, 719 F.3d 415, 420
(5th Cir. 2013).
      Finally, Lara-Diaz asserts that the district court imposed a substantively
unreasonable sentence because it considered factors already taken into
account by the guidelines and it impermissibly relied on his arrest for sexual
abuse. It is within a sentencing court’s discretion to afford extra weight to
circumstances already incorporated in the guidelines. United States v. Key,
599 F.3d 469, 475 (5th Cir. 2010). The district court’s reasons for imposing an
upward departure advanced the goals of 18 U.S.C. § 3553(a), were authorized
by § 3553(b)(1), and were justified by the facts of this case and, thus, the
district court did not abuse its discretion. See United States v. Saldana, 427
F.3d 298, 310 (5th Cir. 2005).
      AFFIRMED.




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