     Case: 18-10527      Document: 00514942689         Page: 1    Date Filed: 05/03/2019




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


                                      No. 18-10527
                                                                                  FILED
                                                                               May 3, 2019
                                                                             Lyle W. Cayce
UNITED STATES OF AMERICA,                                                         Clerk

                                                 Plaintiff-Appellee

v.

ANTOLIN TORRES ABONZA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:17-CR-327-3


Before HIGGINBOTHAM, JONES, and COSTA, Circuit Judges.
PER CURIAM:*
       On May 5, 2017, Antolin Torres Abonza was arrested during a drug
transaction with undercover police officers in Garland, Texas. Abonza, a 61-
year old Mexican national, was in the United States illegally; he had been
removed following convictions and imprisonment for his participation in a 2008
drug conspiracy. Abonza pleaded guilty to one count of conspiracy to possess
with intent to distribute a controlled substance, namely cocaine. Probation
prepared a pre-sentence report (PSR) recommending a sentence in the range


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-10527

of 151 to 188 months. The PSR calculated his offense level at 29; it included in
this calculation a six-point enhancement based on Abonza’s two previous
convictions, making him a career offender under Sentencing Guideline §
4B1.1(b)(3).
      Abonza objected to the PSR’s enhancement recommendation, arguing
the PSR incorrectly applied the Guidelines because his “two predicate
convictions stem from a single prior criminal scheme”; that “[h]is two prior
convictions . . . are not the kind that should trigger a Career Offender
enhancement.” Abonza had been convicted in 2009 in the Eastern District of
Texas of conspiracy to possess with intent to distribute a controlled substance,
in connection with his role in a cocaine distribution scheme. In 2012, in the
Northern District of Illinois, Abonza was convicted of using a communication
facility to commit a drug offense, namely a phone call supposedly made in the
course of the same drug conspiracy. In these two cases, Abonza was named in
separate indictments, and was sentenced on separate dates.
      The district court overruled Abonza’s objections, and applied the career
offender enhancement. Quoting the language of Guideline § 4B1.1, the district
court found that Abonza’s “contention that the two prior convictions are related
and should be counted as one . . . is unavailable to the Court”; that although
the telephone call underlying the 2010 Northern District of Illinois conviction
was concurrent with Abonza’s participation in the Eastern District of Texas
cocaine conspiracy, “the Illinois indictment does not specifically reference the
drug activity that took place in Texas on or about the same time.” In other
words, “it’s possible that the conspiracy involved similar cocaine distribution
conduct but not necessarily the same common plan or scheme. . . . [T]he dots
do not connect.” The district court determined that the Guideline range for the
sentence was 151 to 188 months. The court observed that only six months after



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                                       No. 18-10527

his release from prison for his previous crimes, Abonza reentered the country
illegally to commit his third cocaine-trafficking felony conviction in eight years.
Despite being over 50 years old, Abonza offered no indication that “prior
sentences []or his age has decreased his recidivism or [deterred] him from
engaging in the same or similar type of conduct.” Considering the seriousness
of the offense, the need to promote respect for the law, the need for just
punishment, protection of the public from potential further crime, and
Abonza’s need for correctional treatment, the court imposed a sentence of 151
months. This appeal followed.
       A district court must “impose a sentence sufficient, but not greater than
necessary” to reflect the seriousness of the offense, promote respect for the law,
provide just punishment, afford adequate deterrence, protect the public from
further crimes of the defendant, and to “provide the defendant with needed
educational or vocational training, medical care, or other correctional
treatment in the most effective manner.” 1 Under Sentencing Guideline §
4B1.1, where a career offender’s offense statutory maximum is 20 years or
more, but less than 25 years, his offense level will be 32. 2 A “career offender”
is a defendant who was at least eighteen at the time he committed the offense,
the offense is a felony crime of violence or a controlled substance offense, and
“the defendant has at least two prior felony convictions of either a crime of
violence or a controlled substance offense.” 3 “If there is no intervening arrest,
prior sentences are counted separately unless . . . the sentences resulted from
offenses contained in the same charging instrument; or . . . the sentences were



       1   18 U.S.C. § 3553(a).
       2U.S.S.G. § 4B1.1(b)(3). This provision does not apply if the offender’s offense level is
otherwise greater than 32. Id.
       3   Id. § 4B1.1(a).


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                                        No. 18-10527

imposed on the same day.” 4 We review the substantive reasonableness of a
sentence using an abuse-of-discretion standard, 5 applying a rebuttable
presumption of reasonableness to a properly calculated, within-guidelines
sentence. 6 We affirm unless the district court did not account for a factor that
should have received significant weight, gave significant weight to an
irrelevant or improper factor, or represented a clear error of judgment in
balancing sentencing factors. 7
      Abonza does not challenge the district court’s application of the career
offender enhancement as inconsistent with the Guidelines. Rather, he argues
only that the 151-month sentence is substantively unreasonable because it is
“shockingly high” and does not account for the origin of Abonza’s predicate
convictions in the same underlying conduct. Abonza argues the district court
erred in applying the enhancement, though he concedes it was true to “the
literal language of the current version of the Guidelines.” Abonza instead
points to the 2006 version of the Guidelines, under which he insists his two
predicate convictions would have been treated as “related cases,” such that no
enhancement would have applied, arguing that the district court failed “to
consider that under the old version of the Guidelines, [he] would not have been
treated as a career offender . . . and would have had an advisory imprisonment
range as low as 57–71 months.”
      We need not resolve whether Abonza’s predicate convictions in fact arise
from the same conspiracy, because it would not change the outcome of this
appeal. Abonza concedes that the district court imposed a within-guidelines


      4   Id. § 4A1.2(a)(2).
      5   Gall v. United States, 552 U.S. 38, 51 (2007).
      6   United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
      7   Id.


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sentence, which is due a presumption of reasonableness. Abonza shows us no
missed factor that should have received significant weight, no factor that was
accorded improper weight, nor any error of judgment in balancing sentencing
factors. He offers no authority to support his contention that the district court
should have adhered to the approach of the 2006 Guidelines. Neither his
unsupported contention that we should follow old versions of the Guidelines
nor his bare assertions of the unreasonableness of his sentence rebut the
presumption of reasonableness. We find no abuse of discretion.
      The district court’s sentencing decision is AFFIRMED.




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