     Case: 18-10284      Document: 00514784871         Page: 1    Date Filed: 01/07/2019




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


                                    No. 18-10284
                                                                                FILED
                                                                          January 7, 2019
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

CESAR LOPEZ-RODRIGUEZ,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                       for the Northern District of Texas
                            USDC No. 4:17-CR-141-1


Before DAVIS, HAYNES, and GRAVES, Circuit Judges.
PER CURIAM: *
       Cesar Lopez-Rodriguez appeals his above-guidelines sentence of 24
months and three years of supervised release following his guilty plea
conviction for illegal reentry after deportation. He argues that the sentence is
substantively unreasonable and greater than necessary to achieve the
sentencing goals of 18 U.S.C. § 3553(a) because the district court failed to take
into account that all of his prior criminal offenses were committed when he was


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-10284

17 to 18 years old; the district court gave too much weight to an erroneous
finding that his remaining criminal offenses were committed when he was 21
years old; and the district court failed to account for the fact that all of his prior
criminal offenses occurred over 20 years ago.
      The district court did not abuse its discretion in imposing the upward
variance. See United States v. Diehl, 775 F.3d 714, 724 (5th Cir. 2015). The
court considered      defense   counsel’s     arguments    and   Lopez-Rodriguez’s
allocution and determined that the upward variance was appropriate based on
the § 3553(a) factors, as well as his “disturbing criminal history.” The district
court did not err in relying on Lopez-Rodriguez’s prior criminal history in
varying upward from the guidelines range. See United States v. Fraga, 704
F.3d 432, 440 (5th Cir. 2013). Contrary to Lopez-Rodriguez’s argument, the
record reflects that after the Government noted that he committed two of the
offenses when he was 17 years old, the district court acknowledged that those
offenses were not used to calculate his criminal history. The district court then
considered Lopez-Rodriguez’s correct age at the time of the offenses that were
used to calculate his criminal history and expressly stated that the facts
concerning his age did not change the court’s determination concerning the
appropriate sentence.
      Lopez-Rodriguez’s argument amounts to a disagreement with the
district court’s weighing of the sentencing factors, which “is not a sufficient
ground for reversal.” United States v. Malone, 828 F.3d 331, 342 (5th Cir.
2016). He has not shown the district court failed to consider any significant
factors, gave undue weight to any improper factor, or clearly erred in balancing
the sentencing factors. See Diehl, 775 F.3d at 724. Further, the eight-month
variance imposed in Lopez-Rodriguez’s case was within the range of other
variances affirmed by this court. See United States v. Hebert, 813 F.3d 551,



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                                 No. 18-10284

561-63 (5th Cir. 2015); United States v. Mejia-Huerta, 480 F.3d 713, 717, 723
(5th Cir. 2007).
      In addition, Lopez-Rodriguez argues that the indictment charged him
with illegal reentry under 8 U.S.C. § 1326(a) and that his three-year term of
supervised release exceeds the one-year maximum term of supervised release
under § 1326(a) in violation of his due process rights. As he correctly concedes,
this issue is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224
(1998). See United States v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014); United
States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007).
      AFFIRMED.




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