     Case: 15-30596      Document: 00513452796         Page: 1    Date Filed: 04/05/2016




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

                                    No. 15-30596                                FILED
                                  Summary Calendar                           April 5, 2016
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ESMIN ESPINOZA-ERAZO, also known as Felix Manuel Serrano Robles,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:14-CR-231-1


Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge: *
       Esmin Espinoza-Erazo, a Honduran national, pleaded guilty to illegal
use of a social security number, in violation of 42 U.S.C. § 408(a)(7)(B). The
presentence report (PSR) assigned Espinoza-Erazo a total offense level of ten
and a criminal history category of I, which yielded a guidelines range of six to
twelve months. The PSR identified no factors that might warrant a departure
or variance, although it stated that Espinoza-Erazo “was previously subject to


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-30596    Document: 00513452796     Page: 2   Date Filed: 04/05/2016


                                 No. 15-30596

an administrative deportation” and suggested that he should be required to
cooperate in any removal proceeding as a special condition of supervised
release. At sentencing, the district court adopted the PSR without objection.
Espinoza-Erazo asked for a sentence within the guidelines range, and noted
that his two co-defendants had been sentenced to time served. The district
court upwardly varied from the guidelines range and sentenced Espinoza-
Erazo to a term of imprisonment of twenty-seven months to be followed by
three years of supervised release. The district court also imposed a $2,500 fine
and a special condition of supervised release requiring Espinoza-Erazo, who
was in the United States unlawfully, to cooperate in any future removal
proceedings.     On appeal, Espinoza-Erazo challenges the substantive
reasonableness of the sentence and fine imposed and the lawfulness of the
cooperation condition.
      Following United States v. Booker, 543 U.S. 220 (2005), we review
sentences for reasonableness. United States v. Mondragon-Santiago, 564 F.3d
357, 360 (5th Cir. 2009). Reasonableness review is bifurcated; if a review of
the sentence for procedural error reveals none or, as here, no claim of
procedural error is asserted, the appellate court then determines whether the
sentence is substantively reasonable. Gall v. United States, 552 U.S. 38, 51
(2007).   If error has been preserved, an appellate court reviewing for
reasonableness “merely asks whether the trial court abused its discretion.”
Rita v. United States, 551 U.S. 338, 351 (2007). Challenges to the conditions
of supervised release are also reviewed for abuse of discretion. United States
v. Duke, 788 F.3d 392, 398 (5th Cir. 2015); United States v. Ellis, 720 F.3d 220,
224 (5th Cir. 2013). Sentences within the properly calculated guidelines range
are afforded a presumption of reasonableness, United States v. Pacheco-
Alvarado, 782 F.3d 213, 221 (5th Cir. 2015), while sentences imposed outside
of the properly calculated guidelines range are not, Gall, 552 U.S. at 51.

                                       2
    Case: 15-30596     Document: 00513452796      Page: 3    Date Filed: 04/05/2016


                                  No. 15-30596

Substantive reasonableness is determined in light of the 18 U.S.C. § 3553(a)
sentencing factors. Id. at 49–50.
      Although Espinoza-Erazo argues that the sentence imposed creates
unwarranted sentencing disparities with his co-defendants and fails to accord
sufficient weight to the guidelines and § 3553(a) factors, the record reflects
otherwise.   The district court did not abuse its discretion by considering
Espinoza-Erazo’s uncharged immigration offense when assessing whether the
guidelines range is sufficient in light of the § 3553(a) factors. See, e.g., United
States v. Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir. 2006). In addition, the
within-guidelines fine was conditioned on Espinoza-Erazo being able to work
in prison and being within the United States. This court has upheld the
imposition of similar fines. See Pacheco-Alvarado, 782 F.3d at 216–17. The
district court did not fail to account for a factor that should have received
significant weight, give weight to an improper or irrelevant factor, or clearly
err in balancing the § 3553(a) factors. See United States v. Smith, 440 F.3d
704, 709 (5th Cir. 2006).       In addition, Espinoza-Erazo, given his prior
deportation, was not similarly situated to his co-defendants. Id. We defer to
the district court’s determination that the § 3553(a) factors, on balance, justify
the extent of the upward variance imposed. United States v. Chandler, 732
F.3d 434, 437–38 (5th Cir. 2013) (citing United States v. Broussard, 669 F.3d
537, 551 (5th Cir. 2012)).
      Turning to the cooperation condition, Espinoza-Erazo challenged it in
the district court only “to the extent that it impinges on his right to litigate any
matter that he can or should in immigration [c]ourt.”        “A district court has
wide discretion in imposing terms and conditions of supervised release.”
United States v. Paul, 274 F.3d 155, 164 (5th Cir. 2001). However, the
conditions must be “reasonably related to the factors set forth in section
3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D)”; “involve[] no greater deprivation

                                         3
    Case: 15-30596    Document: 00513452796    Page: 4   Date Filed: 04/05/2016


                                No. 15-30596

of liberty than is reasonably necessary for the purposes set forth in section
3553(a)(2)(B), (a)(2)(C), and (a)(2)(D)”; and be consistent with the policy
statements issued by the Sentencing Commission. 18 U.S.C. § 3583(d).
      Although the cooperation condition conceivably could be construed in a
manner that would limit Espinoza-Erazo’s rights and defenses in removal
proceedings, it may also be construed to require only that he “not evade
removal proceedings and that he comply with the result, not that he waive any
defenses he might have in that hearing.” United States v. Qu, 618 F. App’x
777, 781 (5th Cir. 2015). To the extent the condition could be interpreted to
impinge Espinoza-Erazo’s right to litigate in immigration court and involve a
greater deprivation of liberty than is reasonably necessary, it is within the
authority of this court to interpret the conditions to exclude such an
interference. See Paul, 274 F.3d at 166. Construed in that way, Espinoza-
Erazo has not shown that the district court abused its discretion.
      Any remaining arguments unrelated to the argument that the
cooperation condition limits his rights and defenses are subject to plain error
review because they were not specifically raised below.      United States v.
Wooley, 740 F.3d 359, 367 (5th Cir. 2014); United States v. Kippers, 685 F.3d
491, 497 (5th Cir. 2012).   Here, Espinoza-Erazo cannot establish clear or
obvious error given the absence of any authority to support his arguments. See
Qu, 618 F. App’x at 781.
      AFFIRMED.




                                      4
