     Case: 19-10115      Document: 00515178982         Page: 1    Date Filed: 10/29/2019




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

                                    No. 19-10115                             FILED
                                  Summary Calendar                    October 29, 2019
                                                                        Lyle W. Cayce
                                                                             Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

SAMUEL SALES-MAJOICA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:18-CR-169-1


Before HIGGINBOTHAM, HO, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Samuel Sales-Majoica appeals the 18-month, above-guidelines range
sentence he received upon his guilty plea to illegal reentry following
deportation.      Sales-Majoica contends that his sentence is procedurally
unreasonable because the district court’s sentencing explanation failed to
account for his nonfrivolous argument for a downward departure based on his
time spent in state custody. See U.S.S.G. § 2L1.2, comment. (n.7). He argues


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-10115     Document: 00515178982     Page: 2   Date Filed: 10/29/2019


                                  No. 19-10115

that his sentence is substantively unreasonable because it fails to take into
account factors mitigating for a lesser sentence, including his reasons for
requesting a downward departure. We affirm.
      Sales-Majoica fails to show clear or obvious procedural error. See United
States v. Whitelaw, 580 F.3d 256, 259 (5th Cir. 2009). A departure based on
time served in state custody “should be considered only in cases where the
departure is not likely to increase the risk to the public from further crimes of
the defendant.” § 2L1.2, comment. (n.7). The district court considered the
parties’ written and oral arguments on that question and determined that
Sales-Majoica’s “disturbing criminal history” necessitated an above-guidelines
range sentence under 18 U.S.C. § 3553(a). Implicit in the court’s election of an
above-guidelines sentence was its finding that Sales-Majoica did not warrant
a departure below the guidelines range.          The district court’s sentence
explanation was adequate to permit meaningful appellate review and to
promote the perception of fair sentencing. See Gall v. United States, 552 U.S.
38, 50 (2007). There was no plain error. See Whitelaw, 580 F.3d at 259.
      Nor does Sales-Majoica demonstrate that his 18-month sentence is
substantively unreasonable. His conclusory argument fails to identify any
mitigating § 3553(a) factor that the district court failed to adequately consider.
See United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006). And he does not
suggest how the denial of his downward departure motion failed to account for
a § 3553(a) factor that should have received significant weight, gave significant
weight to an irrelevant or improper factor, or represented a clear error of
judgment in balancing the § 3553(a) factors. See id. We accordingly defer to
the district court’s decision that the § 3553(a) factors, on a whole, justify the
extent of the variance in this case. See Gall, 552 U.S. at 51.
      AFFIRMED.



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