     Case: 16-40012      Document: 00513685403         Page: 1    Date Filed: 09/20/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                    No. 16-40012                                   FILED
                                  Summary Calendar                         September 20, 2016
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

RUBEN JAMES RIOS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:15-CR-775-1


Before JOLLY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM: *
       Ruben James Rios pleaded guilty to receiving child pornography, and the
district court imposed a within-guidelines sentence of 235 months in prison.
Rios argues that his sentence is procedurally and substantively unreasonable
because the district court relied on erroneous assumptions regarding his work
history and frequent changes in employment, his commission of sexual assault,
and the extent of his depression. He also argues that the court erred by


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-40012

imposing a special condition of supervised release prohibiting him from
viewing or possessing sexually oriented or sexually stimulating materials.
Because Rios did not raise these arguments in the district court, we review for
plain error. See United States v. Whitelaw, 580 F.3d 256, 259-60 (5th Cir.
2009).
      Rios’s procedural reasonableness arguments fail for two reasons. First,
he has not shown that the district court relied on the allegedly erroneous
assumptions when imposing sentence. The district court did note that Rios
had spent the majority of his career in jobs involving children; that he hopped
from job to job, which could indicate that he was terminated for wrongdoing;
and that the record contained contradictory evidence regarding the extent of
Rios’s depression. The court further discussed that some studies have shown
that collectors of child pornography had also committed acts of child abuse that
had gone undetected. However, the district court iterated that Rios’s sentence
was not based on any past or future physical contact with children and clearly
articulated that its sentence was based on the lengthy and graphic nature of
the videos that Rios possessed, the young ages of the children depicted in the
videos, the specific search terms that Rios used when searching online for pre-
teen, hard-core child pornography, and his attempts to conceal his identity by
using a browser designed to hide his I.P. address. Thus, Rios has failed to show
that the district court’s comments were material to its analysis. See United
States v. Warren, 720 F.3d 321, 331 (5th Cir. 2013).
      Second, underlying the district court’s allegedly incorrect assumptions
are its factual determinations regarding Rios’s employment history, the
reasons for his job hopping, and the extent of his depression.          Because
“[q]uestions of fact capable of resolution by the district court upon proper
objection at sentencing can never constitute plain error,” Rios cannot establish



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                                  No. 16-40012

plain error in connection with this claim. United States v. Lopez, 923 F.2d 47,
50 (5th Cir. 1991); United States v. Illies, 805 F.3d 607, 609 (5th Cir. 2015).
      Regarding Rios’s substantive reasonableness challenge, he has not
shown that the district court gave significant weight to an irrelevant or
improper factor, and he likewise cannot show that the court committed clear
error in judgment in balancing the sentencing factors. See United States v.
Jenkins, 712 F.3d 209, 214 (5th Cir. 2013). At most, his argument that the
court gave too much weight to some factors amounts to a disagreement with
the balance that the district court struck, but we will not reweigh the 18 U.S.C.
§ 3553(a) factors. See United States v. McElwee, 646 F.3d 328, 344 (5th Cir.
2011); United States v. Heard, 709 F.3d 413, 435 (5th Cir. 2013). The district
court understood the facts of the case, listened to Rios’s reasons for a downward
variance, and explained its reasons for the sentence. Rios’s “disagreement with
the propriety of the sentence imposed does not suffice to rebut the presumption
of reasonableness that attaches to a within-guidelines sentence.”         United
States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010). Finally, Rios’s crime was
sexual in nature, and, as such, the district court did not plainly err by imposing
a special condition prohibiting him from viewing or possessing sexually
oriented or sexually stimulating material. See United States v. Ellis, 720 F.3d
220, 226-27 (5th Cir. 2013).
      AFFIRMED.




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