     Case: 15-10926      Document: 00513642357         Page: 1    Date Filed: 08/18/2016




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

                                    No. 15-10926                                 FILED
                                  Summary Calendar                         August 18, 2016
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

NOEL ESPINOZA-SANTOS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:15-CR-77-1


Before STEWART, Chief Judge, and CLEMENT and SOUTHWICK, Circuit
Judges.
PER CURIAM: *
       Noel Espinoza-Santos appeals the 130-month above-guidelines sentence
imposed by the district court following his guilty plea conviction for illegal
reentry.    He challenges the district court’s imposition of the two-level
enhancement pursuant to U.S.S.G. § 3C1.1 for obstruction of justice. Espinoza-




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-10926       Document: 00513642357      Page: 2   Date Filed: 08/18/2016


                                      No. 15-10926

Santos also challenges the substantive reasonableness of his above-guidelines
sentence.
      Espinoza-Santos argues that the district court erred by imposing the
two-level enhancement for obstruction of justice under § 3C1.1. He contends
that the discrepancy between his post-arrest statement and the statements he
made in his “Truth Affidavit” and at sentencing was the result of a mistake
rather than a willful attempt to obstruct justice. Espinoza-Santos also asserts
that there is insufficient evidence to support the enhancement.
      The “district court’s interpretation or application of the Sentencing
Guidelines is reviewed de novo, and its factual findings, such as a finding of
obstruction of justice, are reviewed for clear error.” United States v. Juarez-
Duarte, 513 F.3d 204, 208 (5th Cir. 2008). A factual finding is not clearly
erroneous as long as it is “plausible in light of the record as a whole.” Id. “This
is particularly true where a sentencing court’s imposition of a § 3C1.1
enhancement is based, at least in part, upon an evaluation of a witness’
credibility.” United States v. Powers, 168 F.3d 741, 753 (5th Cir. 1999).
      In his post-arrest interview with immigration authorities, Espinoza-
Santos stated that he illegally reentered the United States in March 2014.
However, after learning that his sentence would be increased if it was
determined that he reentered in March 2014, Espinoza-Santos filed the Truth
Affidavit and testified at sentencing that he reentered in March 2015. In light
of   the    significant   deference    afforded   the   district   court’s   credibility
determination, it is not implausible that Espinoza-Santos falsely stated in his
Truth Affidavit and at sentencing that he reentered in March 2015.                  See
Juarez-Duarte, 513 F.3d at 208; Powers, 168 F.3d at 753. Therefore, he has
not shown that the district court erred by imposing the obstruction of justice
enhancement.



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                                 No. 15-10926

      Espinoza-Santos also argues that his above-guidelines sentence is
substantively unreasonable because it is greater than necessary to satisfy the
sentencing goals of 18 U.S.C. § 3553(a). In support, he contends that the
district court failed to adequately consider that he had culturally assimilated
in the United States and that his “criminal history lay in the distant past.”
      We review the substantive reasonableness of a sentence for an abuse of
discretion. Gall v. United States, 552 U.S. 38, 51 (2007). Where, as here, the
district court imposes an upward variance from the guidelines range, this court
must determine whether the sentence “unreasonably fails to reflect” the
§ 3553(a) sentencing factors. United States v. Smith, 440 F.3d 704, 708 (5th
Cir. 2006). An above-guidelines sentence is unreasonable if it “(1) does not
account for a factor that should have received significant weight, (2) gives
significant weight to an irrelevant or improper factor, or (3) represents a clear
error of judgment in balancing the sentencing factors.” Id.
      The record reflects that after considering the presentence report,
Espinoza-Santos’s sentencing memorandum, the parties’ arguments at
sentencing, and the applicable guidelines range, the district court concluded
that a within-guidelines sentence was insufficient to satisfy the sentencing
goals of § 3553(a).       Espinoza-Santos’s arguments about his cultural
assimilation and criminal history amount to nothing more than a
disagreement with the district court’s balancing of the § 3553(a) factors, which
is insufficient to show the district court abused its discretion. See United
States v. Lopez-Velasquez, 526 F.3d 804, 807 (5th Cir. 2008).
      Accordingly, the judgment of the district court is AFFIRMED.




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