     Case: 16-50424       Document: 00513933596         Page: 1     Date Filed: 03/30/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                              United States Court of Appeals
                                                                                       Fif h Circuit
                                      No. 16-50424                                   FILED
                                    c/w No. 16-50426                           March 30, 2017
                                   Summary Calendar
                                                                                Lyle W. Cayce
                                                                                     Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

ALFRED ARROYO MENDIETA,

                                                  Defendant - Appellant


                   Appeals from the United States District Court
                         for the Western District of Texas
                             USDC No. 1:15-CR-275-1
                             USDC No. 1:15-CR-239-1


Before BARKSDALE, GRAVES, and COSTA, Circuit Judges.
PER CURIAM: *
       Alfred Arroyo Mendieta appeals the sentences imposed following his
conviction for possession, with intent to distribute, cocaine base, in violation of
21 U.S.C. § 841(a)(1), (b)(1)(C), and the revocation of his supervised release
under 18 U.S.C. § 3583(e). Mendieta’s advisory Sentencing Guidelines range
was calculated to be 37 to 46 months for the new offense; for the revocation, 24


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 16-50424     Document: 00513933596        Page: 2    Date Filed: 03/30/2017


                                   No. 16-50424
                                 c/w No. 16-50426

to 30 months. In imposing sentence, the district court, inter alia, upwardly
departed    pursuant     to   Guideline       § 4A1.3   and   imposed     78-months’
imprisonment for the new conviction and a consecutive 36-month sentence for
revocation of his supervised release.
      Mendieta maintains: the court committed procedural error by upwardly
departing; and the sentences are substantively unreasonable.
      As Mendieta concedes, because he did not raise his upward-departure
contentions 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,
Mendieta must show a forfeited plain (clear or obvious) error that affected his
substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If he
does so, we have the discretion to correct the reversible plain error, but should
do so only if it “seriously affect[s] the fairness, integrity or public reputation of
judicial proceedings”. Id.
      In departing upward, the court considered Mendieta’s numerous prior
convictions, mostly for similar conduct, which did not score criminal-history
points. Under Guideline § 4A1.3, a court may depart upward if “defendant’s
criminal history category substantially under-represents the seriousness of the
defendant’s criminal history”. Accordingly, he fails to show the requisite clear
or obvious error in the decision to depart. See U.S.S.G. §§ 4A1.3, 7B1.4, cmt.
n.2; United States v. Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir. 2006).
      For   his   substantive-unreasonableness          claims,   we    review   “the
substantive reasonableness of the sentence imposed under an abuse-of-
discretion standard”, if the claim is preserved. Gall v. United States, 552 U.S.
38, 51 (2007); see also United States v. Miller, 634 F.3d 841, 843 (5th Cir. 2011).
If not, plain-error review applies. See Broussard, 669 F.3d at 546.




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                                 No. 16-50424
                               c/w No. 16-50426

      We need not decide, however, whether Mendieta preserved his
substantive reasonableness contentions because he fails to show reversible
error under either standard of review. Mendieta’s two sentences, including the
upward departures, advance the relevant objectives of the 18 U.S.C.
§ 3553(a)(2) sentencing factors, are justified by the facts, and are reasonable.
See Gall, 552 U.S. at 51; Zuniga-Peralta, 442 F.3d at 347. We also reject
Mendieta’s contention that his sentence is unreasonable because Guideline
§ 2D1.1 is not empirically grounded. See United States v. Duarte, 569 F.3d 528,
530–31 (5th Cir. 2009).
      AFFIRMED.




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