     Case: 19-40363       Document: 00515238022         Page: 1     Date Filed: 12/16/2019




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

                                     No. 19-40363
                                                                                Fifth Circuit

                                                                              FILED
                                   Summary Calendar                   December 16, 2019
                                                                         Lyle W. Cayce
UNITED STATES OF AMERICA,                                                     Clerk


                                                  Plaintiff - Appellee

v.

RAFAEL POSADAS-GONZALEZ,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:18-CR-907-1


Before BARKSDALE, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Rafael Posadas-Gonzalez challenges the sentence imposed following his
guilty-plea conviction for his being unlawfully present in the United States
after deportation, in violation of 8 U.S.C. § 1326(a). He claims the sentence is
procedurally and substantively unreasonable.
       Pursuant to Sentencing Guideline § 4A1.3(a)(1), the district court
departed upward from the advisory Guidelines sentencing range of 10- to 16-


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 19-40363

months’ imprisonment and imposed a sentence of, inter alia, 30-months’
imprisonment. The court also explained that, if it did not apply the Guideline
§ 4A1.3 departure, it “would apply an upward variance under 18 U.S.C.
§ 3553(a) to reach the same sentence”.
      Although post-Booker, the Guidelines are advisory only, the district
court must avoid significant procedural error, such as improperly calculating
the Guidelines sentencing range. Gall v. United States, 552 U.S. 38, 46, 51
(2007). If no such procedural error exists, a properly preserved objection to an
ultimate sentence is reviewed for substantive reasonableness under an abuse-
of-discretion standard. Id. at 51; United States v. Delgado-Martinez, 564 F.3d
750, 751–53 (5th Cir. 2009). In that respect, for issues preserved in district
court, its application of the Guidelines is reviewed de novo; its factual findings,
only for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751,
764 (5th Cir. 2008).
      Regarding the claimed procedural error, Posadas first claims the court
failed to give an adequate explanation for the sentence. Because he did not
preserve this issue in district court, review is only for plain error. E.g., United
States v. Broussard, 669 F.3d 537, 546 (5th Cir. 2012).
      Under that standard, Posadas must show a forfeited plain error (clear or
obvious error, rather than one subject to reasonable dispute) that affected his
substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If he
makes that showing, we have the discretion to correct such reversible plain
error, but generally should do so only if it “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings”. Id.
      The requisite clear or obvious error is lacking concerning the court’s
explaining its reasons for Posadas’ sentence. Although the explanation was
delivered over the course of his sentencing hearing, “there is no error when



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                                 No. 19-40363

examining the full sentencing record reveals the district court’s reasons for the
chosen sentence and allows for effective review by this court”. United States v.
Key, 599 F.3d 469, 474 (5th Cir. 2010) (internal quotation marks, brackets, and
citation omitted).
      Posadas next bases claimed procedural error on the court’s considering
prior-criminal convictions in applying the Guideline § 4A1.3 departure. As
explained supra, because this issue was preserved in district court, our review
is de novo.
      Guideline § 4A1.3(a)(1) permits an upward departure “[i]f reliable
information indicates that the defendant’s criminal history category
substantially under-represents the seriousness of the defendant’s criminal
history or the likelihood that the defendant will commit other crimes”. The
commentary to Guideline § 4A1.2 states that, if a court finds that a conviction
excluded from the Guidelines’ criminal-history calculation due to its age “is
evidence of similar, or serious dissimilar, criminal conduct, the court may
consider this information in determining whether an upward departure is
warranted under § 4A1.3”. U.S.S.G. § 4A1.2, cmt. n.8. In discussing the
seriousness of Posadas’ criminal history, the court explained it was troubled by
his prior convictions for possession of a switch blade, DUI, and possession of
various controlled substances.
      In addition to the claimed procedural error regarding his prior
convictions, Posadas contends his sentence was substantively unreasonable
because the court failed to consider certain 18 U.S.C. § 3553(a) sentencing
factors; and he reiterates his assertion the Guidelines adequately accounted




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                                  No. 19-40363

for his criminal history.     As discussed supra, a sentence’s substantive
reasonableness is reviewed for abuse of discretion.
      Our court has rejected assertions a district court may not rely on prior
convictions to support an above-guideline sentence either because they were
already factored into the guideline calculation or were excluded from
consideration. See United States v. Lopez-Velasquez, 526 F.3d 804, 807 (5th
Cir. 2008) (citations omitted). Indeed, “a district court may rely upon factors
already incorporated by the Guidelines to support a non-Guidelines sentence”.
United States v. Brantley, 537 F.3d 347, 350 (5th Cir. 2008) (citation omitted).
      After hearing the parties’ assertions and Posadas’ allocution, the court
considered the advisory Guidelines sentencing range, provided an appropriate
basis for its decision to depart upward, and listed relevant § 3553(a) factors. It
properly relied on Posadas’ extensive-criminal history and the failure of an
earlier similar sentence to deter him from illegal reentry.
      AFFIRMED.




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