     Case: 17-41034      Document: 00514525469         Page: 1    Date Filed: 06/22/2018




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

                                    No. 17-41034                                FILED
                                  Summary Calendar                          June 22, 2018
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

CLAUDIO PEREZ-MIRAMONTES,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:17-CR-652-1


Before STEWART, Chief Judge, and DENNIS and HAYNES, Circuit Judges.
PER CURIAM: *
       IT IS ORDERED that our prior panel opinion is WITHDRAWN and the
following opinion is SUBSTITUTED therefor.
       Claudio Perez-Miramontes pleaded guilty to being found in the United
States after previous deportation.         The district court imposed a 65-month
sentence of imprisonment, which was above the advisory guidelines range.
Perez-Miramontes argues that his sentence is 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-41034       Document: 00514525469     Page: 2   Date Filed: 06/22/2018


                                  No. 17-41034

because the district court gave “undue, significant weight to its unfounded
belief that [he] may have ‘exposed others’” to his medical condition.
      Perez-Miramontes’s argument fails for two reasons.          Underlying the
district court’s allegedly “unfounded belief” is its factual determination that
Perez-Miramontes may have exposed others to his medical condition. The
Government does not rely on our rule that “questions of fact capable of
resolution by the district court can never constitute plain error.” See United
States v. Illies, 805 F.3d 607, 609 (5th Cir. 2015). Instead it explains that the
district court’s factual finding was plausible in light of the record as a whole.
We agree with this contention. Id. Second, it is evident from the record that
the district court was concerned with Perez-Miramontes’s recidivism and that
it chose to impose the variance due to Perez-Miramontes’s criminal history, to
protect the public, to promote respect for the law, and to afford adequate
deterrence. See United States v. Brantley, 537 F.3d 347, 350 (2008). Perez-
Miramontes’s disagreement with the district court’s weighing of the factors is
insufficient to demonstrate an abuse of discretion. See Gall v. United States,
552 U.S. 38, 51 (2007). Given the significant deference that is due to a district
court’s consideration of the § 3553(a) factors and the district court’s
explanation   of   its    sentencing   decision,   Perez-Miramontes       has   not
demonstrated that his 65-month sentence is substantively unreasonable. See
Brantley, 537 F.3d at 349; United States v. McElwee, 646 F.3d 328, 337 (5th
Cir. 2011). Accordingly, the judgment of the district court is AFFIRMED.




                                        2
