     Case: 15-41230      Document: 00513664123         Page: 1    Date Filed: 09/02/2016




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

                                    No. 15-41230
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                       September 2, 2016
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


                                                 Plaintiff-Appellee

v.

CESAR ATANACIO-ANTONIO, also known as Cesar Atanacio, also known as
Cesar Antonio Atanacio, also known as Cesar A. Atanacio

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 3:15-CR-6-1


Before PRADO, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Cesar Atanacio-Antonio appeals his 26-month guidelines range sentence
imposed following his guilty plea conviction for being found unlawfully present
in the United States following deportation. He argues that the sentence was
substantively unreasonable contending that the district court relied
exclusively on the sentencing guidelines range and did not consider the 18



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 15-41230    Document: 00513664123     Page: 2      Date Filed: 09/02/2016


                                 No. 15-41230

U.S.C. § 3553(a) factors that weighed in favor of a downward departure or
variance. Specifically, while acknowledging that the sentencing guidelines
range was properly calculated, Atanacio-Antonio complains that the
computation of his criminal history score was unfair because he received
separate criminal history points for sentences that arose out of the same
arrests (for different crimes discovered during the same arrests).
      Where, as here, the sentence is within the guidelines range, this court
employs an abuse of discretion standard of review, and the sentence is afforded
a presumption of reasonableness that is rebutted only upon a showing that the
sentence does not account for a § 3553(a) factor that should receive significant
weight, gives significant weight to an irrelevant or improper factor, or
represents a clear error of judgment in balancing the § 3553(a) factors. See
United States v. Scott, 654 F.3d 552, 555 (5th Cir. 2011).
      The district court indicated that it understood Atanacio-Antonio’s
request for a downward variance or departure based on his disagreement with
the manner in which the criminal history points were calculated, but it
concluded that a departure or variance was not warranted.             Contrary to
Atanacio-Antonio’s argument, the district court did not rely solely on the
guidelines calculation in determining the sentence, but rather it listed the
specific relevant § 3553(a) factors that it had considered to insure that the
sentence imposed was sufficient but not greater than necessary to comply with
the purpose of sentencing.
      Atanacio-Antonio has not shown that the district court failed to account
for a factor that should have received significant weight, gave significant
weight to an irrelevant or improper factor, or clearly erred in balancing the
§ 3553(a) factors. See Scott, 654 F.3d at 555. His disagreement with the way
in which criminal history points are scored and the manner in which the



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                                No. 15-41230

district court weighed the various factors did not overcome the presumption of
reasonableness. See United States v. Sanchez, 667 F.3d 555, 569 (5th Cir.
2012).   Atanacio-Antonio has failed to show that the sentence was
substantively unreasonable or that the district court abused its discretion in
imposing a guidelines sentence. See id. at 569-70. Accordingly, the sentence
is AFFIRMED.




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