     Case: 19-50079      Document: 00515315310         Page: 1    Date Filed: 02/19/2020




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

                                                                                FILED
                                    No. 19-50079                        February 19, 2020
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MIGUEL RODRIGUEZ-PRIETO, also known as Aristeo Huerta,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:18-CR-197-1


Before SMITH, DENNIS, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Miguel Rodriguez-Prieto challenges the procedural and substantive
reasonableness of his illegal reentry sentence of 96 months of imprisonment,
an upward variance from the guidelines range of 37 to 46 months. Because he
did not object to the reasonableness of the sentence in the district court, we
review for plain error. See United States v. Whitelaw, 580 F.3d 256, 259-60
(5th Cir. 2009). However, Rodriguez-Prieto’s arguments fail even under the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-50079

abuse-of-discretion standard that applies to preserved challenges to the
reasonableness of a sentence. See Gall v. United States, 552 U.S. 38, 51 (2007).
      According to Rodriguez-Prieto, the district court procedurally erred by
relying on his criminal history to impose the variance without considering
certain factors under 18 U.S.C. § 3553(a). He also asserts that the court failed
to consider the guidelines range and to provide adequate reasons for the
sentence.   The district court expressly considered and rejected a sentence
within the guidelines range and provided fact-specific reasons why the upward
variance was consistent with several § 3553(a) factors. It was not required to
address each § 3553(a) factor individually. See United States v. Smith, 440
F.3d 704, 707 (5th Cir. 2006). We find no procedural error. See id.
      Next, Rodriguez-Prieto contends that the variance was substantively
unreasonable because the district court made a clear error of judgment
weighing the sentencing factors. Specifically, he asserts that the court did not
account for the nature, circumstances, and seriousness of the offense of illegal
reentry. The record shows, however, that the court gave special weight to those
factors, emphasizing that Rodriguez-Prieto was previously deported twice, had
a prior conviction for illegal reentry, and illegally returned shortly after
completing an 87-month sentence for the same offense.             The court also
emphasized that Rodriguez-Prieto’s illegal reentry as a repeat sex offender
posed a unique danger to the public, given his pattern of noncompliance with
sex offender registration requirements and his ability to avoid further
monitoring upon illegal reentry.
      Additionally, Rodriguez-Prieto contends that the district court gave
significant weight to an improper factor by relying on his criminal history to
impose the upward variance when it was accounted for already in his criminal
history category. “A defendant’s criminal history is one of the factors that a



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                                  No. 19-50079

court may consider in imposing a non-Guideline sentence,” notwithstanding its
use in determining the guidelines range.         Id. at 709.   Moreover, nine of
Rodriguez-Prieto’s 11 prior convictions did not receive criminal history points.
         To the extent Rodriguez-Prieto also asserts that the degree of the
variance was unreasonable, he cites no caselaw to support the assertion. We
have found no abuse of discretion in other cases where the district court
imposed a significant variance for similar reasons. See, e.g., United States v.
Lopez-Velasquez, 526 F.3d 804, 805-07 (5th Cir. 2008) (affirming upward
variance of 42 months based on the defendant’s conviction, arrest, and
deportation history); Smith, 440 F.3d at 705-06, 709-10 (affirming upward
variance of 33 months based on the defendant’s criminal history, parole status,
and quick recidivism).     We defer “to the district court’s decision that the
§ 3553(a) factors, on a whole, justify the extent of the variance.” Gall, 552 U.S.
at 51.
         Because Rodriguez-Prieto shows no error, plain or otherwise, in the
imposition of his sentence, the judgment of the district court is AFFIRMED.




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