     Case: 17-41203      Document: 00514676312         Page: 1    Date Filed: 10/10/2018




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


                                    No. 17-41203
                                                                                 FILED
                                                                           October 10, 2018
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JORGE LUIS ORTIZ-ESQUIVEL,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:17-CR-1130-1


Before REAVLEY, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Jorge Luis Ortiz-Esquivel appeals the 75-month, above-guidelines
sentence imposed following his guilty plea conviction for illegally reentering
the United States after removal. He argues that his sentence is substantively
unreasonable because the district court failed to take into consideration his
motive for reentering the country and failed to account for the need to avoid




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-41203      Document: 00514676312       Page: 2   Date Filed: 10/10/2018


                                     No. 17-41203

unwarranted sentence disparities, while giving undue weight to his prior
federal convictions.
      We ordinarily review the substantive reasonableness of a sentence for
abuse of discretion, see Gall v. United States, 552 U.S. 38, 51 (2007); United
States v. Diehl, 775 F.3d 714, 724 (5th Cir. 2015), but where the defendant
failed to preserve an error in the district court, we apply a plain error standard
of review, United States v. Peltier, 505 F.3d 389, 391 (5th Cir. 2007). Ortiz-
Esquivel raised some of his argument in the district court, but he did not argue
in the district court that an above-guidelines sentence would result in
unwarranted sentence disparities.
      Although a district court must consider “the need to avoid unwarranted
sentence disparities among defendants with similar records who have been
found guilty of similar conduct,” 18 U.S.C. § 3553(a)(6), Ortiz has not shown
that, in light of the other sentencing factors considered by the district court,
any error in failing to consider this one factor affected his substantial rights.
See Puckett v. United States, 556 U.S. 129, 135 (2009). Additionally, although
Ortiz argues that the district court gave no weight to the mitigating reason for
his most recent reentry and gave undue weight to the fact that he committed
federal offenses, he fails to show that the district court abused its discretion.
See United States v. Malone, 828 F.3d 331, 342 (5th Cir. 2016); see also Gall,
552 U.S. at 51 (“The fact that the appellate court might reasonably have
concluded that a different sentence was appropriate is insufficient to justify
reversal of the district court.”).
      Ortiz’s above-guidelines sentence does not unreasonably fail to reflect
the statutory sentencing factors set forth in § 3553(a). See United States
v. Smith, 440 F.3d 704, 708 (5th Cir. 2006). The district court’s judgment is
AFFIRMED.



                                          2
