     Case: 18-40921      Document: 00515143016         Page: 1    Date Filed: 10/02/2019




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


                                    No. 18-40921                            FILED
                                                                      October 2, 2019
                                  Summary Calendar
                                                                       Lyle W. Cayce
                                                                            Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff–Appellee

v.

JUAN ROLANDO ZUNIGA-MEDRANO,

                                                 Defendant–Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:18-CR-443-1


Before OWEN, Chief Judge, and SOUTHWICK and WILLETT, Circuit Judges.
PER CURIAM: *
       Juan Rolando Zuniga-Medrano pleaded guilty to being an alien
unlawfully found in the United States and was sentenced within the advisory
guidelines range to 46 months in prison. Zuniga-Medrano argues that the
district court’s reasons for denying his request for a downward variance were
inadequate. He also argues that his sentence is substantively unreasonable
because the district court erred by (1) denying his request for a downward


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-40921

variance based on sentencing manipulation and (2) relying on an improper
sentencing factor.
      Because Zuniga-Medrano did not object to the sufficiency of the district
court’s reasons for the sentence it imposed, our review is for plain error. See
United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009). For
sentences within the guidelines range, little explanation is necessary; however,
when parties present nonfrivolous arguments for imposing a different
sentence, “the judge will normally go further and explain why he has rejected
those arguments.” Rita v. United States, 551 U.S. 338, 356-57 (2007).
      The district court did not plainly err with respect to the sufficiency of its
explanation for its denial of the downward variance; the court considered
Zuniga-Medrano’s arguments for a sentence below the guidelines range,
including his request for a downward variance based on sentencing
manipulation.    When imposing the 46-month sentence, the district court
expressly noted that it had imposed a lenient sentence in a prior case, that
Zuniga-Medrano had reoffended despite that leniency, and that it had
“factored everything in” when denying his request for a downward variance.
Thus, the record reflects that the court considered all the evidence and
arguments but simply found the circumstances insufficient to warrant a lesser
sentence in light of the Sentencing Guidelines and the 18 U.S.C. § 3553(a)
factors. See Rita, 551 U.S. at 358-59.
      With respect to Zuniga-Medrano’s argument that the district court
imposed a greater sentence than necessary because it did not consider the
impact of sentencing manipulation, we review the sentence for reasonableness
in light of the sentencing factors in § 3553(a). See Gall v. United States, 552
U.S. 38, 51 (2007). Because Zuniga-Medrano’s claim is unavailing under both
the abuse of discretion and plain error standards of review, we need not


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                                 No. 18-40921

determine which standard applies in this case. See United States v. Rodriguez,
523 F.3d 519, 525 (5th Cir. 2008).
      Zuniga-Medrano argues that his sentence was manipulated because
after border patrol agents apprehended him for transporting marijuana, they
released him to state authorities for prosecution rather than first prosecuting
him for related federal offenses. He asserts that the Government’s actions
resulted in higher sentencing exposure because the prior state court conviction
factored into the calculation of his guidelines range for the underlying offense.
We have not decided whether sentencing entrapment or sentencing factor
manipulation is a viable defense, and we need not do so here. See United States
v. Stephens, 717 F.3d 440, 446 (5th Cir. 2013). Even if the defense is viable,
Zuniga-Medrano has not shown that he was persuaded to commit a greater
offense than he otherwise was predisposed to commit or that the Government’s
conduct in the instant case was overbearing or outrageous. See id.; United
States v. Jones, 664 F.3d 966, 984 (5th Cir. 2011). He likewise has not shown
that his sentence was substantively unreasonable in light of the time he spent
in state custody on the state drug conviction. See Gall, 552 U.S. at 51.
      Finally, Zuniga-Medrano has not shown plain error in connection with
his argument that the district court considered an improper sentencing factor,
i.e., his broken promise to the district court in a prior case that he would not
illegally reenter this country. See United States v. Cooks, 589 F.3d 173, 186
(5th Cir. 2009); Mondragon-Santiago, 564 F.3d at 361. The district court’s
statements show that it implicitly relied on permissible factors, including the
nature and circumstances of the offense, Zuniga-Medrano’s history and
characteristics, and the need for the sentence to promote respect for the law,
to provide just punishment for the offense, and to afford adequate deterrence




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to his criminal conduct. See § 3553(a)(1), (2); United States v. Smith, 440 F.3d
704, 709 (5th Cir. 2006).
      AFFIRMED.




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