     Case: 16-11420      Document: 00514174329         Page: 1    Date Filed: 09/28/2017




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

                                    No. 16-11420
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                      September 28, 2017
                                                                           Lyle W. Cayce
                                                                                Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff−Appellee,

versus

RAYMUNDO GONZALEZ GARIBAY,

                                                 Defendant−Appellant.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:16-CR-49-1




Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
PER CURIAM: *

       Raymundo Gonzalez Garibay appeals his 78-month, top-of-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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-11420

guidelines sentence for illegal reentry in violation of 8 U.S.C. § 1326. He
contends that the sentence violates his due-process rights, asserting that it
could not exceed the two-year maximum under § 1326(a) because the indict-
ment did not allege that he had a conviction that would trigger a sentencing
enhancement under that subsection. He further avers that the sentence is
substantively unreasonable because the court failed to account for his cultural
assimilation. Gonzalez Garibay has also filed a pro se motion requesting that
appointed counsel be relieved of duties for abandonment and conflict of
interest.

      Gonzalez Garibay did not raise a due-process challenge in the district
court, so review is for plain error only. See United States v. Mondragon-
Santiago, 564 F.3d 357, 368 (5th Cir. 2009). In any event, he concedes that
Almendarez-Torres v. United States, 523 U.S. 224 (1998), forecloses his due-
process argument, but he wishes to preserve the issue for possible Supreme
Court review.

      We review the substantive reasonableness of a sentence for abuse of dis-
cretion. See United States v. Delgado-Martinez, 564 F.3d 750, 753 (5th Cir.
2009). Gonzalez Garibay asserts that the district court improperly balanced
the sentencing factors because it did not give appropriate weight to the miti-
gating factor of his cultural assimilation. Although cultural assimilation is a
permissible basis for granting a downward departure, courts are not required
to grant such departures and still have discretion when determining the sen-
tence. See United States v. Castillo, 386 F.3d 632, 637−38 (5th Cir. 2004)
(finding that district court did not plainly err by granting a downward depar-
ture based on cultural assimilation); U.S.S.G. § 2L1.2, comment. (n.7) (noting
that a “downward departure may be appropriate on the basis of cultural assim-
ilation”) (emphasis added). Moreover, a departure is not warranted where it


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                                  No. 16-11420

is “likely to increase the risk to the public from further crimes of the defen-
dant.” § 2L1.2, comment. (n.7). The record reveals that Gonzalez Garibay had
a serious criminal history, including some violent crimes. There is no require-
ment that all sentencing factors must be given equal weight; accordingly, the
district court could properly give Gonzalez Garibay’s criminal history more
weight than his cultural assimilation.       See United States v. Hernandez,
633 F.3d 370, 375−76 (5th Cir. 2011). Furthermore, the record reveals that, in
addition to considering the appropriate 18 U.S.C. § 3553(a) factors, the court
considered, but explicitly rejected, Gonzalez Garibay’s theory that his cultural
assimilation warranted a reduced sentence.

      Gonzalez Garibay has not rebutted the presumption of reasonableness
that attaches to his properly calculated within-guidelines sentence. See United
States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). Accordingly, he cannot dem-
onstrate that the court abused its discretion. See Delgado-Martinez, 564 F.3d
at 753.

      Gonzalez Garibay is represented by appointed counsel and is not entitled
to “hybrid representation”; therefore he cannot file a pro se motion. United
States v. Ogbonna, 184 F.3d 447, 449 n.1 (5th Cir. 1999) (internal quotation
marks and citations omitted). To the extent that Gonzalez Garibay is request-
ing to proceed pro se, his request is untimely because it was filed after counsel’s
appellate brief was filed. Cf. United States v. Wagner, 158 F.3d 901, 902-03
(5th Cir. 1998) (stating that once counsel’s withdrawal brief is filed, a motion
to proceed pro se is untimely and should be denied).

      The judgment is AFFIRMED; Gonzalez Garibay’s pro se motion to relieve
counsel of duties is DENIED.




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