     Case: 18-10899      Document: 00514945917        Page: 1     Date Filed: 05/07/2019




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

                                                                               FILED
                                   No. 18-10899                             May 7, 2019
                                 Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk



UNITED STATES OF AMERICA,

                                                Plaintiff−Appellee,

versus

JESUS RIOS-GARZA,

                                                Defendant−Appellant.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                                 No. 5:18-CR-21-1




Before SMITH, WIENER, and WILLETT, Circuit Judges.
PER CURIAM: *

      Raising two claims, Jesus Rios-Garza challenges the above-guidelines



      * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in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. 18-10899

sentence of forty months and the three-year supervised release term that he
received for illegally reentering the United States after deportation. First, he
contends that the prison term is substantively unreasonable. Second, he avers
that the prison and supervised release terms violate due process.

      In support of his substantive-reasonableness challenge, Rios-Garza
maintains that his sentence is shockingly high, greater than necessary to
achieve the sentencing goals in 18 U.S.C. § 3553(a), and represents a clear
error of judgment in balancing the § 3553(a) factors. In particular, he reasons
as follows: The court failed to account for the fact that all of his DWI offenses
were more than ten years old; one of them did not result in a conviction; his
drug-trafficking conviction was seven years old; he had one deportation; and
this criminal history did not warrant an upward variance.

      There is no indication that the district court failed to account for a factor
that should have received significant weight, gave significant weight to any
improper factor, or clearly erred in balancing the sentencing factors.         See
United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006). The court adopted
the presentence report without objection and considered Rios-Garza’s expres-
sion of remorse.     The court then tied its reasons for imposing an above-
guidelines sentence to specific facts, including Rios-Garza’s deportation and
criminal history, and to particular § 3553(a) sentencing factors that are suffi-
cient to justify the variance. See Gall v. United States, 552 U.S. 38, 51 (2007).
In essence, Rios-Garza is asking us to reweigh the § 3553(a) sentencing factors,
which is not within the scope of our review. See id. Thus, the district court did
not abuse its sentencing discretion. See id.; United States v. McElwee, 646 F.3d
328, 344−45 (5th Cir. 2011).

      Regarding Rios-Garza’s due process claim, he cites Apprendi v. New Jer-
sey, 530 U.S. 466 (2000), and Alleyne v. United States, 570 U.S. 99 (2013), in


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                                 No. 18-10899

support of his theory that the statutory maximum sentences of § 1326(b)(1) do
not apply because his indictment did not allege a prior felony conviction. As
Rios-Garza correctly concedes, that issue is foreclosed. See Almendarez-Torres
v. United States, 523 U.S. 224, 226−27 (1998); see also United States v. Wallace,
759 F.3d 486, 497 (5th Cir. 2014); United States v. Pineda-Arrellano, 492 F.3d
624, 625 (5th Cir. 2007).

      The judgment is AFFIRMED.




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