     Case: 19-40808      Document: 00515436171         Page: 1    Date Filed: 06/01/2020




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

                                                                               FILED
                                                                             June 1, 2020
                                    No. 19-40808
                                  Summary Calendar                          Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JUAN ANTONIO CABRERA-BENITEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:19-CR-732-1


Before KING, GRAVES, and WILLETT, Circuit Judges.
PER CURIAM: *
       Juan Antonio Cabrera-Benitez appeals the within-guidelines sentence of
27 months imposed upon his guilty-plea conviction for illegal reentry, see 8
U.S.C. § 1326, arguing that the sentence is procedurally and substantively
unreasonable and violates due process. Cabrera-Benitez, a citizen of El
Salvador, was accompanied by his two-year-old son when he illegally reentered
by rafting across the Rio Grande.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-40808

      The procedural claim is that the district court selected the sentence
based on clearly erroneous facts by engaging in improper speculation about
Cabrera-Benitez’s reasons for bringing his toddler on the journey. See Gall v.
United States, 552 U.S. 38, 51 (2007). We review for plain error because
Cabrera-Benitez did not raise this claim in the district court. See Puckett v.
United States, 556 U.S. 129, 136 (2009). To establish plain error, Cabrera-
Benitez must show a forfeited error that is clear or obvious—in other words,
not “subject to reasonable dispute”—and that affects his substantial rights. Id.
at 135. If Cabrera-Benitez discharges that burden, we may exercise our
discretion “to remedy the error . . . if the error seriously affects the fairness,
integrity or public reputation of judicial proceedings.” Id. (internal quotation
marks, bracketing, and citation omitted).
      It is neither clear nor obvious that the district court chose Cabrera-
Benitez’s “sentence based on clearly erroneous facts,” thereby committing
procedural error and violating due process. Gall, 552 U.S. at 51. Whether the
district court factored into its sentencing decision a belief that Cabrera-Benitez
had an illicit motivation for reentering with a toddler in tow—namely, to avoid
custodial detention by the immigration authorities and then disappear into the
United States—is “subject to reasonable dispute.” Puckett, 556 U.S. at 135. In
the context of the sentencing hearing, the district court’s remarks concerning
the son may reasonably be taken as an expression of serious skepticism in
response to the defense’s characterization of Cabrera-Benitez as being
motivated purely by fatherly concerns about the boy’s welfare. The record
reveals no indication, clear or otherwise, that the district court considered the
boy’s involvement as a basis for sentencing. To the contrary, the sole matter
that the court specifically cited as the reason for its sentence was Cabrera-
Benitez’s criminal history, which included two assault convictions. And even



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                                  No. 19-40808

assuming that Cabrera-Benitez has established a plain procedural error, he
cannot show that it affected his substantial rights—that is, “affected the
outcome of the district court proceedings.” Puckett, 556 U.S. at 135 (internal
quotation marks and citation omitted); see United States v. Dominguez Benitez,
542 U.S. 74, 81, 84-85 (2004). Again, the district court unequivocally invoked
the assault convictions, not Cabrera-Benitez’s parenting, as the reason a 27-
month sentence was necessary.
      The substantive unreasonableness claim is that the district court
speculated about Cabrera-Benitez’s motivations and thus gave significant
weight to an improper or irrelevant factor. See United States v. Hernandez, 876
F.3d 161, 166 (5th Cir. 2017). Because Cabrera-Benitez moved for a downward
departure or variance, we review for abuse of discretion. See Holguin-
Hernandez v. United States, 140 S. Ct. 762, 766-67 (2020). To establish such
abuse, Cabrera-Benitez must overcome the presumption of reasonableness
accorded his within-guidelines sentence. See Hernandez, 876 F.3d at 166.
      As already noted, Cabrera-Benitez has failed to show improper fact-
finding. And the only reason given by the district court for its sentence was the
need to protect the public from Cabrera-Benitez, given his criminal history.
Cabrera-Benitez cannot overcome the presumption of reasonableness. See id.;
see also 18 U.S.C. § 3553(a)(1), (2)(C).
      AFFIRMED.




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