     Case: 19-10750      Document: 00515355579         Page: 1    Date Filed: 03/23/2020




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


                                    No. 19-10750
                                                                                FILED
                                                                          March 23, 2020
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

SANTOS MONDRAGON BENITEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:19-CR-15-1


Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Santos Mondragon Benitez appeals the procedural reasonableness of his
84-month sentence, which was imposed by the district court as an upward
variance from the guidelines range.             He argues that the district court
committed procedural error by basing the upward variance, in part, on the
need to protect the public, which he contends was based on an erroneous




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-10750     Document: 00515355579      Page: 2   Date Filed: 03/23/2020


                                   No. 19-10750

finding that he posed a danger to the public. He did not object to his sentence
on this basis in the district court.
      When, as in this case, an appellant fails to raise an objection to the
procedural reasonableness of his sentence in the district court, our review of
that challenge is for plain error only.     See United States v. Mondragon-
Santiago, 564 F.3d 357, 361 (5th Cir. 2009). Here, the appellant argues that
plain error review should not apply, however, because he could not have
objected to the alleged procedural error until the district court issued its
written statement of reasons indicating that the variance was based, in part,
on the need to protect the public. We need not decide whether plain error
review applies because this sentencing claim fails even under the ordinary
abuse of discretion standard. See United States v. Rodriguez, 602 F.3d 346,
361 (5th Cir. 2010).
      Although the district court made no explicit factual finding that the
appellant was a danger to others, the record supports the district court’s
determination that the need for the sentence to protect the public was one of
several factors warranting a sentence above the guidelines range.             The
presentence report, which the district court adopted, set forth facts showing
that the appellant engaged in criminal conduct without regard to the public’s
safety, and the district court was within its discretion to consider those facts,
which the appellant did not contest or establish to be materially untrue,
inaccurate, or unreliable. See United States v. Soza, 874 F.3d 884, 897 (5th
Cir. 2017).
      The appellant has not shown that the district court selected the sentence
based on clearly erroneous facts or committed any procedural error, much less
a significant one, by imposing the upward variance based in part on the need
to protect the public from further criminal conduct. See Gall v. United States,



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                             No. 19-10750

552 U.S. 38, 51 (2007).    Accordingly, the district court’s judgment is
AFFIRMED.




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