     Case: 18-30250       Document: 00514673291         Page: 1     Date Filed: 10/09/2018




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

                                     No. 18-30250                            FILED
                                   Summary Calendar                    October 9, 2018
                                                                        Lyle W. Cayce
                                                                             Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

RICHARD WALTER BOREK, JR.,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 6:17-CR-183-1


Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Richard Walter Borek, Jr., pleaded guilty to wire fraud, under 18 U.S.C.
§1343, for defrauding his employer of more than $2.5 million in falsified sales
of cell phones and computer equipment.                He contests the district court’s
imposition of, inter alia, 160 months’ imprisonment within the advisory
Sentencing Guidelines range, claiming his sentence is substantively
unreasonable.


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 18-30250

      In the presentence investigation report (PSR), Borek received a 16-level
increase to his base-offense level, and was assessed a criminal history score of
VI, resulting in a total Guidelines sentencing range of 100 to 125 months.
When he failed to appear for his initial sentencing hearing, however, the
district court found he violated his terms of release and issued an arrest
warrant. Once he was apprehended, the PSR was revised to, inter alia, include
an enhancement for obstruction of justice due to his failure to appear, and the
Guidelines sentencing range was reassessed to 151 to 188 months.
      Borek contends his sentence was substantively unreasonable because of,
among other things, his gambling addiction, the non-violent nature of his
offense, and his loss of his home, family, and friends. 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, 48–51 (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). Because
Borek does not assert any procedural error, our review is only for abuse-of-
discretion   in   determining   whether     his   sentencing    is   substantively
unreasonable. E.g., Gall, 552 U.S. at 51.
      The district court reviewed Borek’s claims in support of a lesser sentence
but decided a 160-month sentence was appropriate.           “Appellate review is
highly deferential as the sentencing judge is in a superior position to find facts
and judge their import under [the 18 U.S.C.] § 3553(a) [sentencing factors]



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                                No. 18-30250

with respect to a particular defendant.” United States v. Campos-Maldonado,
531 F.3d 337, 339 (5th Cir. 2008). Accordingly, a sentence imposed within the
advisory Guidelines sentencing range is presumptively reasonable. United
States v. Washington, 480 F.3d 309, 314 (5th Cir. 2007). Such a presumption
is rebutted only by showing the sentence does not account for a factor that
should receive significant weight, gives significant weight to an irrelevant or
improper factor, or represents a clear error of judgment in balancing
sentencing factors. United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
Because Borek can show none of these, he has not rebutted the presumption of
reasonableness applicable to his sentence. See Washington, 480 F.3d at 314.
      AFFIRMED.




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