     Case: 19-20877      Document: 00515513450         Page: 1    Date Filed: 08/03/2020




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

                                                                          FILED
                                      No. 19-20877                     August 3, 2020
                                                                       Lyle W. Cayce
                                                                            Clerk
UNITED STATES OF AMERICA,

               Plaintiff - Appellee

v.

RENE FEDERICO REYNOSO-ESCUADRA,

               Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:19-CR-617-1


Before STEWART, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM:*
       Rene Federico Reynoso-Escuadra pleaded guilty to one count of illegal
re-entry and was sentenced to a statutory maximum twenty-four month term
of imprisonment. He appeals his sentence as substantively unreasonable,
arguing that the district court relied too heavily on his prior deportations that
did not result in criminal prosecutions and on his prior arrests that did not
result in criminal convictions. We affirm.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-20877


                                    I. Background
      Reynoso-Escuadra, a Mexican citizen, was first removed from the United
States for being in the country without lawful immigration status on February
18, 2005. He was subsequently removed seven more times, with his most recent
deportation occurring on September 30, 2018.
      In June 2019, Reynoso-Escuadra was stopped while driving a vehicle in
Fort Bend County, Texas. Based on the fact that he had been previously
removed and still lacked lawful permission to be in the United States, a grand
jury indicted him on one count of illegal re-entry in violation of 8 U.S.C. §
1326(a). Reynoso-Escuadra pleaded guilty to the single-count indictment.
      The Presentence Investigation Report (“PSR”) relied on the United
States Sentencing Commission’s 2018 Guidelines Manual to calculate
Reynoso-Escuadra’s applicable guidelines range. The PSR calculated a total
offense level of six: a base level of eight with two points deducted for acceptance
of responsibility. The PSR then detailed Reynoso-Escuadra’s previous
convictions, which included: (1) a 2003 conviction for being under the influence
of a controlled substance; (2) a 2003 conviction for taking a vehicle without the
owner’s consent; (3) a 2004 conviction for obstructing a public officer; (4) a 2011
conviction for “corporal injury” to a spouse or cohabitant; and (5) a 2011
conviction for unlawfully using a firearm, being under the influence of a
controlled substance with a firearm, and driving with a suspended or revoked
driver’s license. Based on these convictions, the PSR calculated Reynoso-
Escuadra’s criminal history score as four, which put him in criminal history
category III for guidelines purposes. With a total offense level of six and a
criminal history category of III, the PSR computed the applicable guidelines
range as two to eight months of imprisonment.


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                                  No. 19-20877
      The PSR then went on to describe “other criminal conduct” and “other
arrests,” historical information that did not factor into Reynoso-Escuadra’s
guidelines range but that the district court might find important for sentencing
purposes. The “other criminal conduct” section listed and briefly described the
circumstances leading to Reynoso-Escuadra’s eight prior removals. It also
described the circumstances that led to his June 2019 arrest in Fort Bend
County. The “other arrests” section then listed a number of arrests that did not
lead to criminal convictions. This included: (1) a 2002 arrest for being under
the influence of a controlled substance; (2) a 2002 arrest for failure to appear;
(3) a 2003 arrest for a litany of charges, including possessing and being under
the influence of a controlled substance; (4) a 2003 arrest for trespassing; (5) a
2004 arrest for being under the influence of a controlled substance; (6) another
2004 arrest for being under the influence of a controlled substance, in addition
to a charge of contributing to the delinquency of a minor; and (7) a 2010 arrest
for being under the influence of a controlled substance.1
      The PSR noted that the court could “consider an upward departure” from
the applicable guidelines range because Reynoso-Escuadra’s criminal history
score failed to account for his eight prior removals that did not result in
criminal prosecution. See U.S.S.G. § 4A1.3(a) (setting forth the situations when
a district court may depart upward based on the inadequacy of a defendant’s
criminal history category). Nevertheless, the PSR did not identify any
sentencing factor under 18 U.S.C. § 3553(a) that would warrant a sentence
outside of Reynoso-Escuadra’s applicable guidelines range. Reynoso-Escuadra
did not object to the PSR.




      1  It is unclear from the PSR whether there is any overlap between the conduct
underlying these arrests and the conduct that ultimately led to the convictions.
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                                 No. 19-20877
      At the sentencing hearing, Reynoso-Escuadra requested a within-
guidelines sentence. His attorney emphasized that Reynoso-Escuadra held a
position of trust distributing commissary at the jail in which he was being held;
that he took Bible study courses “to better his life and better his living”; that
this was “his first federal immigration case”; that he had a home in Mexico to
return to; and that he had persuaded the mother of his then 10-year-old U.S.
citizen son to let the child travel to Mexico to visit Reynoso-Escuadra, which
would create less of an incentive for Reynoso-Escuadra to re-enter the country
without lawful status. The Government noted that an “upward departure is
not what we’re asking for but certainly at the high end of the guidelines.”
      The district court then proceeded to “read off [Reynoso-Escuadra’s] prior
criminal history like [the court does] in every case.” The court read aloud the
convictions, the “other criminal conduct,” which included the prior
deportations, and then finally the “other arrests.” After the court finished
listing the events, it stated:
                   As far as I’m concerned, it’s a horrendous
             criminal history. He’s learned nothing, absolutely
             nothing.
                   The Court determines a guideline sentence does
             not address or accurately take into consideration the
             history and characteristics of this Defendant, his
             repeated crimes, nor his total and gross disregard and
             respect for the laws of the United States.
                   This offense represents his ninth Immigration
             violation, all previous removals being without
             prosecution. The Court determines an upward
             variance is appropriate in this case; and the following
             sentence, I believe, is sufficient but not greater than
             necessary based upon the history and characteristics
             of the Defendant, the need to promote respect for the
             laws of the country, the need for just punishment for
             criminal behavior, and the need to protect the public


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                                 No. 19-20877
            under 18 United States Code Section 3553(a). I’m
            aware that the max right now is two years.
                  Based upon the findings of the Court, the
            Defendant is hereby committed to the custody of the
            Bureau of the Prisons to be imprisoned in the federal
            penitentiary without parole for a term of 24 months.
            That’s two years.
                  Upon release from imprisonment, he’ll be placed
            on supervised release for a term of one year.
                  Within 72 hours of release, he’ll report in person
            to the probation office and that -- this supervised
            release is the most I can give under the law; but it’s an
            added means of deterrence, although nothing else has
            stopped him from coming back in eight prior times and
            thrown out of the country that many times.
In closing, the court added:
                   And I’m directing now to the Government that if
            [Reynoso-Escuadra] comes back in for any reason, if he
            comes back in and he’s prosecuted, he comes back in
            front of me, not any other judge. He comes right back
            in front of me, not any other judge, if he comes back in
            because he’s already been -- this will be the ninth time
            he’s thrown out of the country.
      The court then offered Reynoso-Escuadra an opportunity to object to the
sentence. His counsel argued that the sentence was substantively
unreasonable because it was three times the high end of his guidelines range,
emphasizing that the court erred by focusing too much on his prior re-entries.
The court overruled the objection.
      On    appeal,   Reynoso-Escuadra      renews    the    same       substantive
reasonableness objection he made to the district court. He also argues that the
district court placed too much emphasis on his “bare arrest record” when listing




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                                       No. 19-20877
his arrests that did not result in criminal convictions just before pronouncing
the sentence.2 We address both arguments.


                                   II. Standard of Review
       We     review     Reynoso-Escuadra’s          challenge      to   the    substantive
reasonableness of his sentence for abuse of discretion.3 Holguin-Hernandez v.
United States, 140 S. Ct. 762, 766 (2020).


       2   The Government points out that our court has treated this type of “bare arrest
record” claim as one of procedural error instead of substantive error. See United States v. Van
Mol, 799 F. App’x 258, 258 (5th Cir. 2020) (unpublished) (“[The defendant] also contends that
the district court erred by considering his bare arrest record. Although he frames this in
terms of substantive reasonableness, we have considered this issue in terms of procedural
error.”) (citing United States v. Harris, 702 F.3d 226, 229 (5th Cir. 2012)). But in United
States v. Van Mol, the court implicitly recognized that this type of challenge could implicate
both procedural and substantive issues. Id. at 258–59 (“To the extent his argument regarding
consideration of the bare arrest record implicates substantive reasonableness, it fails for the
same reasons set out above.”). And in one case cited by Reynoso-Escuadra, United States v.
Foley, the court expressly considered this issue as part of a substantive unreasonableness
argument. 946 F.3d 681, 685 (5th Cir. 2020) (“Foley argues that the district court imposed a
substantively unreasonable sentence because it improperly gave significant weight to the
unsubstantiated, bare allegations in the revocation petition concerning his commission of the
possession and assault offenses.”). Accordingly, we consider this challenge as one to the
substantive reasonableness of Reynoso-Escuadra’s sentence, just as he has presented it to us.

       3  The Government asks us to consider Reynoso-Escuadra’s arguments as two separate
issues that require two separate standards of review. It concedes that he preserved his
argument that the district court issued a substantively unreasonable sentence by placing too
much emphasis on his prior deportations, and it concedes that abuse of discretion is the
proper standard of review for that argument. But it contends that he failed to preserve his
argument that the court improperly relied on his bare arrest record, and for that reason the
Government insists that the claim should be reviewed for plain error. Because we hold that
Reynoso-Escuadra cannot overcome even the less deferential abuse of discretion standard,
we follow the lead of several prior panels that have applied abuse of discretion review to
specific arguments supporting a substantive reasonableness claim that had not clearly been
raised before the district court. See United States v. Holguin-Hernandez, 955 F.3d 519, 520
n.1 (5th Cir. 2020) (“Arguably some of Holguin-Hernandez’s specific arguments were not
preserved and are subject to plain error review. However, because Holguin-Hernandez would
not prevail even under the less deferential abuse of discretion standard, we do not reach that
question here.” (citation omitted)); United States v. Loucious, 803 F. App’x 798, 798 n.1 (5th
Cir. 2020) (unpublished) (“Although an argument can be made for plain error review given
the particular arguments raised on appeal, because Loucious cannot prevail under either
standard of review, we apply the less deferential standard.”).
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                                   No. 19-20877


                                       III. Discussion
       We review the substantive reasonableness of Reynoso-Escuadra’s
sentence considering the totality of circumstances. Gall v. United States, 552
U.S. 38, 51 (2007). We do not presume his sentence was unreasonable just
because it was three times the high end of his applicable guidelines range. See
id. Although we may consider the extent of the district court’s deviation from
the guidelines range, we also must give “due deference” to the court’s decision
that, after having considered the sentencing factors in 18 U.S.C. § 3553(a), an
upward variance was justified. Id. “The fact that [we] might reasonably have
concluded that a different sentence was appropriate is insufficient to justify
reversal of the district court.” Id.
      Generally, a non-guidelines sentence may be considered substantively
unreasonable when it can be shown that the district court either: (1) failed to
account for a § 3553(a) factor that should have received significant weight; (2)
gave significant weight to an irrelevant or improper factor; or (3) made a clear
error of judgment in balancing the sentencing factors. United States v. Fraga,
704 F.3d 432, 440 (5th Cir. 2013). Here, Reynoso-Escuadra argues that all
three errors occurred.
      He first contends that the court’s twenty-four month sentence failed to
sufficiently account for his applicable guidelines range of two to eight months,
and that the applicable guidelines range is a factor under § 3553(a)(4) that
should have received significant weight. He next argues that the court erred
by giving significant weight to two factors that were irrelevant or improper:
the prior deportations and the bare arrest records. Finally, he avers that,
considered together, these mistakes represent a clear error of judgment by the
district court in applying the § 3553(a) sentencing factors.


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                                 No. 19-20877
      More specifically, Reynoso-Escuadra argues that the prior deportations
received too much weight for several reasons. First, although he technically
has been removed eight times, the removals came over a roughly thirteen-year
period. Second, three of those removals happened within weeks of each other,
so they should really be considered one elongated and continually thwarted
attempt to enter and remain in the country without status. Third, because the
illegal re-entry guidelines under U.S.S.G. § 2L1.2(b)(1) were amended in 2016
to call for the application of an enhancement only for re-entry convictions, the
district court improperly over-stepped the decision of the Sentencing
Commission by giving unprosecuted re-entries more weight in its decision. See
U.S.S.G., App. C, Amendment 802 (effective Nov. 1, 2016).
      These arguments do not convince us that the district court abused its
discretion in relying on Reynoso-Escuadra’s prior unprosecuted removals when
sentencing him. Notwithstanding the 2016 guidelines amendment, nothing
prohibits district courts from considering a defendant’s prior unprosecuted
deportations when issuing a sentence in an illegal re-entry case. See 18 U.S.C.
§ 3661 (“No limitation shall be placed on the information concerning the
background, character, and conduct of a person convicted of an offense which
a court of the United States may receive and consider for the purpose of
imposing an appropriate sentence.”); see also United States v. Rodriguez-Prieto,
794 F. App’x 434, 435 (5th Cir. 2020) (unpublished) (recognizing that it was
appropriate for the district court to consider that the defendant had twice been
deported when analyzing the defendant’s history and characteristics under 18
U.S.C. § 3553(a)(1)); accord United States v. Caballero-Anaya, 807 F. App’x
837, 844–45 (10th Cir. 2020) (unpublished) (affirming as substantively
reasonable an upward variance that depended on, among other things, “eight
prior removals”). The district court did not abuse its discretion in placing


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                                  No. 19-20877
significant weight on Reynoso-Escuadra’s prior removals even though they
occurred over more than a decade and did not result in criminal prosecution.
      Additionally, the fact that the court mentioned Reynoso-Escuadra’s bare
arrest record before pronouncing the sentence does not mean the district court
abused its discretion. It’s true that district courts cannot rely on bare arrest
records to justify varying from a defendant’s guidelines range. United States v.
Johnson, 648 F.3d 273, 278 (5th Cir. 2011) (“[F]or a non-Guidelines sentence,
just as for a Guidelines sentence, it is error for a district court to consider a
defendant’s ‘bare arrest record’ at sentencing.”). But the record is, at best,
ambiguous as to whether the district court considered the unadjudicated
arrests in determining Reynoso-Escuadra’s sentence.
      The court mentioned the arrests only after listing several crimes for
which Reynoso-Escuadra did receive convictions. And even though the court
summarized Reynoso-Escuadra’s past as “a horrendous criminal history,” the
description likely encompassed his actual convictions and his prior
deportations, all of which were discussed by the court in the same breath as
the bare arrest records. Most importantly, the court twice emphasized that the
conduct underlying his conviction represented Reynoso-Escuadra’s “ninth
[i]mmigration violation,” which contributed to the court’s reasonable belief
that Reynoso-Escuadra had a “total and gross disregard and respect for the
laws of the United States.”
      Because the record shows that it was Reynoso-Escuadra’s immigration
history that most troubled the district court, the district court did not abuse its
discretion. See United States v. Bosley, 365 F. App’x 599, 600 (5th Cir. 2010)
(unpublished) (“As there is no indication that the mere mention of Bosley’s
unadjudicated prior arrests had any bearing on the district court’s decision to
deny relief, Bosley has not shown that the district court abused its discretion.”).


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                            No. 19-20877
                             IV. Conclusion
  For the foregoing reasons, we AFFIRM the judgment of the district court.




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