     Case: 17-30579      Document: 00514498566         Page: 1    Date Filed: 06/04/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                         United States Court of Appeals

                                    No. 17-30579
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                           June 4, 2018
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


                                                 Plaintiff-Appellee

v.

HECTOR BARRIOS-PATINO, also known as Hector Enrique Barrios,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:17-CR-59-1


Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
PER CURIAM: *
       Hector Barrios-Patino pleaded guilty to illegal reentry following
deportation in violation of 8 U.S.C. § 1326(a) and (b)(1). The district court
sentenced Barrios-Patino at the top of the guidelines range to 21 months of
imprisonment followed by 1 year of supervised release. Barrios-Patino filed a
timely notice of appeal, and he argues that his within-guidelines sentence of
21 months is substantively unreasonable because it was based on an improper


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-30579       Document: 00514498566          Page: 2     Date Filed: 06/04/2018


                                       No. 17-30579

factor—his prior DWI convictions. He further argues that the district court
committed clear error in balancing the sentencing factors because it gave
unreasonable weight to Barrios-Patino’s prior DWI convictions.
       Barrios-Patino concedes that he did not object to the substantive
reasonableness of his sentence. Accordingly, review is for plain error. 1 United
States v. Whitelaw, 580 F.3d 256, 260 (5th Cir. 2009).
       This court has recognized that a defendant’s prior criminal conduct is
relevant to sentencing under the guidelines provided that such conduct is
directly relevant to the crime committed. United States v. Chandler, 732 F.3d
434, 438 (5th Cir. 2013). Barrios-Patino’s criminal history reflects a decade-
long pattern of entering the country illegally, driving while intoxicated, serving
prison time for driving drunk, and being administratively removed from the
United States. The district court acknowledged this pattern at sentencing and
based Barrios-Patino’s sentence on “his repeated offenses of both reentry and
his other conduct of repeatedly driving while intoxicated.” Barrios-Patino has
failed to show that the district court committed plain error in its consideration
of his criminal history. See Whitelaw, 580 F.3d at 260.
       Further, the record reflects that the district court considered all of the
18 U.S.C. § 3553(a) factors before imposing a sentence at the top of the
guidelines range. The court explained that Barrios-Patino’s criminal history,
which included five DWI convictions; the need to protect the public; and the
need to deter criminal conduct weighed against a lesser sentence. It was
proper for the court to consider the nature of Barrios-Patino’s criminal history,
see Chandler, 732 F.3d at 438, and the record does not support Barrios-Patino’s



       1 Barrios-Patino concedes that circuit precedent requires an objection to preserve the
substantive reasonableness of a sentence for review, but he raises the issue to preserve it for
further review.


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                               No. 17-30579

claim that the court over-relied on this factor to the exclusion of the other
sentencing factors.
      The judgment of the district court is AFFIRMED.




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