     Case: 18-11626      Document: 00515149413         Page: 1    Date Filed: 10/08/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals
                                                                                Fifth Circuit
                                    No. 18-11626                              FILED
                                  Summary Calendar                      October 8, 2019
                                                                         Lyle W. Cayce
                                                                              Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

FRANCISCO GUERRERO-SAUCEDO,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:18-CR-174-1


Before WIENER, HAYNES, and COSTA, Circuit Judges.
PER CURIAM: *
       Francisco     Guerrero-Saucedo        appeals    from     the    above-Guidelines
sentence imposed after his guilty plea conviction for illegal reentry.                           The
presentence report, which the district court adopted, determined that the
advisory Guidelines imprisonment range was 10 to 16 months. After hearing
Guerrero-Saucedo’s mitigation arguments, the district court sentenced him to
60 months of imprisonment and two years of supervised release. The district


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-11626

court explained that the 60-month sentence was based primarily on Guerrero-
Saucedo’s eight prior removals, his two prior convictions for illegal entry, and
the close temporal proximity between some of his prior removals and illegal
reentries.
      In his first argument on appeal, Guerrero-Saucedo asserts that the
district court’s reasons for his sentence were inadequate because they failed to
include specific references to his mitigation arguments and were insufficient
to support the upward variance. We first ensure that the sentencing court
committed no significant procedural error and then, if the district court’s
decision is procedurally sound, we will review the substantive reasonableness
of the sentence using an abuse-of-discretion standard, if the issue has been
preserved. See Gall v. United States, 552 U.S. 38, 51 (2007).
      When a district court imposes an upward variance, as in this case, “the
district court must more thoroughly articulate its reasons . . . than when it
imposes a” within-Guidelines sentence. United States v. Smith, 440 F.3d 704,
707 (5th Cir. 2006). The record shows that the district court acknowledged
that it had reviewed Guerrero-Saucedo’s mitigation arguments and articulated
detailed bases–including references to particular 18 U.S.C. § 3553(a) factors–
supporting the upward variance. The district court did not err in this regard.
See United States v. Anderson, 697 F. App’x 359, 359 (5th Cir. 2017); United
States v. Lopez-Velasquez, 526 F.3d 804, 807 (5th Cir. 2008).
      In his challenge to the substantive reasonableness of his sentence,
Guerrero-Saucedo argues that the extent of the upward variance was
unreasonable because the district court’s underlying reasons were taken fully
into account by the Guidelines and his criminal history consisted of nonviolent
and relatively minor offenses. The record shows that the district court did not
fail to account for a factor that should have received significant weight, did not



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                                 No. 18-11626

give significant weight to an irrelevant or improper factor, and did not commit
a clear error of judgment in balancing the § 3553(a) factors. See United States
v. Gerezano-Rosales, 692 F.3d 393, 401 (5th Cir. 2012). Guerrero-Saucedo’s
arguments amount to a request for this court to reweigh the § 3553(a) factors,
which we will not do. See Gall, 552 U.S. at 51. Moreover, we have upheld
greater variances than the one at issue here. See, e.g., United States v. Rhine,
637 F.3d 525, 526, 528-29 (5th Cir. 2011) (upholding an upward variance to
180 months from a range of 30 to 37 months); United States v. Key, 599 F.3d
469, 475-76 (5th Cir. 2010) (upholding sentence of 216 months of imprisonment
where the top of the Guidelines sentencing range was 57 months). Accordingly,
the district court did not abuse its discretion by imposing a 60-month sentence.
      Guerrero-Saucedo also argues that the enhancement provisions in 8
U.S.C. § 1326(b) are unconstitutional and that his guilty plea was invalid
because he was not admonished that his prior felony conviction was an
essential element that had to be proved beyond a reasonable doubt.            He
correctly concedes that these arguments are foreclosed by Almendarez-Torres
v. United States, 523 U.S. 224, 226-27 (1998).
      AFFIRMED.




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