     Case: 15-51054      Document: 00513685427         Page: 1    Date Filed: 09/20/2016




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

                                    No. 15-51054
                                                                                   Fifth Circuit

                                                                                 FILED
                                  Summary Calendar                      September 20, 2016
                                                                            Lyle W. Cayce
UNITED STATES OF AMERICA,                                                        Clerk


                                                 Plaintiff-Appellee

v.

CHRISTOPHER DIAZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 4:15-CR-280-1


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Christopher Diaz pled guilty to two counts of aiding and abetting the
transportation of illegal aliens for financial gain in violation of 8 U.S.C.
§ 1324(a)(1)(A)(ii), (v)(II).    The district court rejected Diaz’s request for a
downward variance and sentenced him to 30 months of imprisonment on each
count, to run concurrently, and to a three-year term of supervised release.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-51054

       Diaz argues that his 30-month sentence, which is at the bottom of the
applicable guideline range of 30–37 months, is greater than necessary to
achieve the sentencing goals of 18 U.S.C. § 3553 and is, therefore,
substantively unreasonable. He claims the district court gave too much weight
to his prior drug convictions, which were relatively old and the product of his
substance abuse problem. He also contends that the sentence overestimated
the seriousness of his offense and was greater than necessary to provide
deterrence or protect the public given that he was not a repeat alien
transporter, did not stand to benefit financially from the crime, and did not
know he would be transporting four other aliens when a friend called and
asked Diaz to give him and his undocumented pregnant cousin a ride.
       A properly preserved challenge to the substantive reasonableness of a
sentence will be reviewed by this court for abuse of discretion. Gall v. United
States, 552 U.S. 38, 51 (2007). An unpreserved substantive reasonableness
challenge will be reviewed on appeal for plain error. United States v. Peltier,
505 F.3d 389, 391 (5th Cir. 2007). 1 Although Diaz argued in the district court
for a downward variance based on the same arguments he now raises on
appeal, he failed to object to the substantive reasonableness of the sentence
imposed. Nevertheless, because Diaz’s sentence can be affirmed under the
abuse of discretion standard, it is unnecessary for this court to decide whether
plain error review should be applied. See United States v. Rodriguez, 523 F.3d
519, 525 (5th Cir. 2008).
       Diaz’s arguments are nothing more than a disagreement with the district
court’s weighing of the Section 3553(a) factors, which is insufficient to show an

       1 For the purpose of preserving the issue for further review, Diaz asserts that if a
defendant has already presented his arguments for a lower sentence to the district court, he
need not object to the length of the sentence after it is imposed to preserve for appeal a claim
of substantive reasonableness. He concedes this argument is foreclosed by circuit precedent.
See Peltier, 505 F.3d at 391–92.


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                                 No. 15-51054

abuse of discretion. See United States v. Ruiz, 621 F.3d 390, 398 (5th Cir.
2010). By adopting the presentence report, the district court considered the
nature of Diaz’s offense conduct, as well as his prior adult convictions,
including the types and dates of those convictions.         The district court
considered Diaz’s request for a downward variance, but concluded that “a fair
and reasonable sentence [could] be achieved with a sentence selected from
within the advisory range.” Diaz is essentially asking this court to reweigh the
Section 3553(a) factors. We decline to do so. See Rodriguez, 523 F.3d at 526.
      The judgment of the district court is AFFIRMED.




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