     Case: 14-50934   Document: 00513001363   Page: 1   Date Filed: 04/10/2015




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


                              No. 14-50934                               FILED
                                                                     April 10, 2015
                            Summary Calendar
                                                                    Lyle W. Cayce
                                                                         Clerk
UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee

v.

ADELIO RIVERA-MIRANDA,

                                         Defendant-Appellant
________________

Cons w/ 14-50939

UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee

v.

ADELIO RIBERA-MIRANDA, also known as Adelio Rivera, also known as
Adelio Miranda-Rivera, also known as Adelio Rivera-Miranda,

                                         Defendant-Appellant



                Appeals from the United States District Court
                      for the Western District of Texas
                          USDC No. 2:13-CR-1649-1
                          USDC No. 2:14-CR-713-1
     Case: 14-50934      Document: 00513001363         Page: 2    Date Filed: 04/10/2015


                           No. 14-50934 c/w No. 14-50939

Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
       Following his guilty plea to illegal reentry after deportation, the district
court sentenced Adelio Rivera-Miranda (Rivera) to a 37-month term of
imprisonment. The district court also revoked a term of supervised release
that had been imposed following Rivera’s convictions in the District of
Nebraska for bank fraud and illegal reentry and imposed a consecutive 12-
month revocation sentence. Although he filed notices of appeal in both cases,
Rivera’s brief in these consolidated appeals challenges only the revocation
sentence.     He has therefore waived any challenge to his illegal reentry
conviction and the associated sentence. See United States v. Thames, 214 F.3d
608, 611 n.3 (5th Cir. 2000).
       We    review     Rivera’s     revocation     sentence     under     the    “plainly
unreasonable” standard. See United States v. Miller, 634 F.3d 841, 843 (5th
Cir. 2011). Although Rivera acknowledges this court’s holding in Miller, he
argues that the “plainly unreasonable” standard used by this court is incorrect
because it is based on a flawed interpretation of United States v. Booker, 543
U.S. 220 (2005). Rivera contends that the reasonableness standard established
in Booker should be applied in the review of all criminal sentences, including
revocation sentences. He concedes that his argument is foreclosed by Miller,
but he raises the issue to preserve it for possible further review.
       Rivera’s consecutive 12-month revocation sentence falls within the
guidelines range, and it is consistent with the Sentencing Guidelines’ policy
regarding consecutive sentences. See U.S.S.G. § 7B1.3(f), p.s.; § 7B1.4, p.s. The



       * 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. 14-50934 c/w No. 14-50939

sentence was thus entitled to a presumption of reasonableness. See United
States v. Lopez-Velasquez, 526 F.3d 804, 808-09 (5th Cir. 2008); United States
v. Candia, 454 F.3d 468, 471 (5th Cir. 2006). To rebut the presumption of
reasonableness, Rivera must show that the district court failed to account for
a sentencing factor that should have been accorded substantial weight, gave
substantial weight to an “irrelevant or improper factor,” or made “a clear error
of judgment in balancing [the] sentencing factors.” United States v. Cooks, 589
F.3d 173, 186 (5th Cir. 2009).
      As the district court noted, Rivera has a significant criminal history,
which prompted the district court to express a concern for protecting the public
and providing deterrence.        Rivera’s arguments regarding the overstated
seriousness of the illegal reentry offense and his personal circumstances
amount to a mere disagreement with the district court’s balancing of the
appropriate 18 U.S.C. § 3553 sentencing factors, and such is insufficient to
overcome the presumption of reasonableness. See United States v. Alvardo,
691 F.3d 592, 597 (5th Cir. 2012).
      In view of the foregoing, the judgments of the district court are
AFFIRMED.




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