     Case: 18-50098      Document: 00514888679         Page: 1    Date Filed: 03/26/2019




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

                                     No. 18-50098                           FILED
                                   c/w No. 18-50109                    March 26, 2019
                                  Summary Calendar                     Lyle W. Cayce
                                                                            Clerk

UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

CLAUDIO ALBERTO RODELAS-CARO,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                        for the Western District of Texas
                            USDC No. 4:13-CR-488-2
                             USDC No. 4:17-CR-99-1


Before BENAVIDES, HAYNES, and WILLETT, Circuit Judges.
PER CURIAM: *
       Claudio Alberto Rodelas-Caro appeals his third conviction in six years
for aiding and abetting possession with intent to distribute marijuana, as well
as the second revocation of a term of his supervised release during that same
period. Because he fails to identify any error in the revocation, however, he
has abandoned any challenge to that judgment. See FED. R. APP. P. 28(a)(8)(A);


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-50098
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Brinkmann v. Dallas Cty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987).
      According to Rodelas-Caro, his 188-month guidelines sentence as a
career offender under U.S.S.G. § 4B1.1 was greater than necessary to achieve
the sentencing goals of 18 U.S.C. § 3553(a) in light of his minor role in the
nonviolent offense, his nonviolent criminal history, and his mitigating personal
circumstances. He also contends that the guidelines sentence is unreasonable
because the career offender Guideline is the result of a congressional directive
in 28 U.S.C. § 994(h) and is not supported by the sort of research and empirical
data that typically underlie the Guidelines. In addition, he relies on a 2016
report by the Sentencing Commission concluding that the career offender
Guideline produces excessive sentences for nonviolent drug offenders. See U.S.
SENTENCING COMM’N, REPORT TO THE CONGRESS: CAREER OFFENDER
SENTENCING ENHANCEMENTS 44 (2016).
      We review the substantive reasonableness of a sentence for abuse of
discretion, giving deference to the district court’s assessment of the § 3553(a)
factors.   Gall v. United States, 552 U.S. 38, 51-52 (2007).      A rebuttable
presumption of reasonableness applies to sentences within the properly-
calculated guidelines range, United States v. Cooks, 589 F.3d 173, 186 (5th Cir.
2009), notwithstanding any argument that the relevant Guideline is
unsupported by empirical data, see United States v. Mondragon-Santiago, 564
F.3d 357, 366-67 (5th Cir. 2009). “The presumption is rebutted only upon a
showing that the sentence does not account for a factor that should receive
significant weight, it gives significant weight to an irrelevant or improper
factor, or it represents a clear error of judgment in balancing sentencing
factors.” Cooks, 589 F.3d at 186.




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                                  No. 18-50098
                                c/w No. 18-50109

      Rodelas-Caro fails to rebut the presumption. See id. The district court
was required to apply the career offender Guideline in effect at the time of his
sentencing and did not abuse its discretion in declining to vary below the
guidelines range to account for the Sentencing Commission’s reasons for
seeking to change that Guideline. See United States v. Scott, 654 F.3d 552, 558
(5th Cir. 2011); United States v. Johnson, 596 F. App’x 355, 356 (5th Cir.
2015). 1 The record reflects that the district court considered Rodelas-Caro’s
arguments for a downward variance, including his arguments about the career
offender Guideline and his mitigating personal circumstances, as well as the
Government’s arguments challenging his credibility and highlighting his
recent recidivism.   The district court considered the § 3553(a) factors and
determined that the guidelines range was “fair and reasonable” and that the
guidelines minimum sentence of 188 months was appropriate. We defer to the
district court’s sentencing determination and will not disturb it even if we
“might reasonably have concluded that a different sentence was appropriate.”
Gall, 552 U.S. at 51-52.
      AFFIRMED.




      1Although Johnson is unpublished, we find it persuasive.   See United States v.
Simkanin, 420 F.3d 397, 417 n.22 (5th Cir. 2005).


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