     Case: 18-11548      Document: 00515093535         Page: 1    Date Filed: 08/27/2019




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

                                                                              FILED
                                    No. 18-11548                        August 27, 2019
                                  Summary Calendar
                                                                         Lyle W. Cayce
                                                                              Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

EDGAR ORTEGA-LIMONES,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:18-CR-135-1


Before KING, GRAVES, and WILLETT, Circuit Judges.
PER CURIAM: *
       Edgar Ortega-Limones was convicted of one count of illegal reentry into
the United States and sentenced to serve an above-guidelines prison term of
60 months as well as a three-year term of supervised release. Now, he argues
that his sentence is procedurally unreasonable because the district court did
not explicitly address his argument for a below-guidelines sentence and did not
adequately explain its choice to give an above-guidelines sentence. He further


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-11548

argues that the sentence is substantively unreasonable because it was greater
than needed to achieve the sentencing aims of 18 U.S.C. § 3553(a).
      We review sentences for reasonableness in light of the sentencing factors
of § 3553(a). Gall v. United States, 552 U.S. 38, 46, 49-50 (2007). Under the
bifurcated review process of Gall, we first examine whether the district court
committed procedural error. 552 U.S. at 51. When sentencing, a judge should
give enough reasons to show “that he has considered the parties’ arguments
and has a reasoned basis for exercising his own legal decisionmaking
authority.” Rita v. United States, 551 U.S. 338, 356 (2007).
      If the sentence is procedurally reasonable, we then review it for
substantive reasonableness in light of the § 3553(a) factors. Gall, 552 U.S. at
51. In reviewing a non-guidelines sentence for substantive reasonableness, we
“consider the totality of the circumstances, including the extent of any variance
from the Guidelines range.” United States v. Brantley, 537 F.3d 347, 349 (5th
Cir. 2008) (internal quotation marks and citation omitted). A sentence is
substantively unreasonable if it ignores a factor that should have been given
considerable weight, gives considerable weight to an improper factor, or is the
result of “a clear error of judgment in balancing the sentencing factors.” United
States v. Chandler, 732 F.3d 434, 437 (5th Cir. 2013) (internal quotation and
citations omitted). The defendant’s disagreement with the sentence selected
by the district court does not warrant reversal. United States v. Ruiz, 621 F.3d
390, 398 (5th Cir. 2010); see Gall, 552 U.S. at 51.
      The record shows that the district court gave due consideration to the
§ 3553(a) factors, including those emphasized by Ortega-Limones, before
imposing sentence. Although it did not explicitly reject his arguments in favor
of a below-guidelines sentence, it was not required to do so. See Rita, 551 U.S.
at 359.   Additionally, the district court’s reasons show that it properly



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                                 No. 18-11548

grounded its choice of sentence in Ortega-Limones’s history as well as the need
for deterrence and protection of the public. Ortega-Limones has not shown
that his sentence is procedurally unreasonable. See Rita, 551 U.S. at 359, 356;
Fraga, 704 F.3d at 439.
      He likewise has not shown that his sentence is substantively
unreasonable. The record reveals no error in connection with the district
court’s consideration of sentencing factors. See Chandler, 732 F.3d at 437.
Rather, the record shows that the district court considered the § 3553(a) factors
and concluded that they counseled in favor of an above-guidelines sentence.
Additionally, the sentence is similar to others this court has affirmed. See
Brantley, 537 F.3d at 349-50; United States v. Lopez-Velasquez, 526 F.3d 804,
807 (5th Cir. 2008); United States v. Smith, 440 F.3d 704, 708-10 (5th Cir.
2006). Ortega-Limones’s arguments show no more than a disagreement with
the district court’s weighing of the § 3553(a) factors, which is not enough to
show error. See Ruiz, 621 F.3d 390, 398. Finally, his challenge to 8 U.S.C.
§ 1326(b), which is grounded in Apprendi v. New Jersey, 530 U.S. 466 (2000),
is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998).
      AFFIRMED.




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