     Case: 18-11331      Document: 00515013384         Page: 1    Date Filed: 06/27/2019




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

                                                                                FILED
                                    No. 18-11331                            June 27, 2019
                                  Summary Calendar                         Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

RODRIGO ORTIZ-NAJERA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:18-CR-109-1


Before SMITH, WIENER, and WILLETT, Circuit Judges.
PER CURIAM: *
       Following Rodrigo Ortiz-Najera’s guilty plea conviction for illegal
reentry following deportation, the district court imposed a sentence of 17
months of imprisonment—10 months above the top of the advisory guidelines
range—to be followed by a one-year term of supervised release. As a standard
condition of supervised release, the district court required Ortiz-Najera to
permit a probation officer to visit him at any time at home or elsewhere and


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-11331   Document: 00515013384     Page: 2   Date Filed: 06/27/2019


                                 No. 18-11331

permit confiscation of any contraband observed in plain view by the probation
officer.   Ortiz-Najera argues that his prison sentence is substantively
unreasonable and that the standard visitation condition is procedurally and
substantively unreasonable and is unconstitutional under the Fourth
Amendment.
       Appellate courts review sentences for reasonableness by engaging in a
bifurcated review. Gall v. United States, 552 U.S. 38, 49-51 (2007). The court
must first ensure that the sentencing court committed no significant
procedural error. Id. If the district court’s decision is procedurally sound, the
court will then “consider the substantive reasonableness of the sentence” under
an abuse-of-discretion standard. Id.
       As a threshold matter, our review of the record persuades us that the
district court imposed an upward variance under 18 U.S.C. § 3553(a) rather
than an upward departure under U.S.S.G. § 4A1.3. See United States v. Smith,
440 F.3d 704, 708 (5th Cir. 2006). Accordingly, we disregard Ortiz-Najera’s
argument that the district court failed to consider the commentary to § 4A1.3.
See United States v. Mejia-Huerta, 480 F.3d 713, 723 (5th Cir. 2007).
       The district court heard and implicitly considered defense counsel’s
mitigation arguments and Ortiz-Najera’s allocution.       See United States v.
Bailentia, 717 F.3d 448, 450 (5th Cir. 2013).      However, the district court
disagreed with Ortiz-Najera’s characterization of his criminal history and
repeated illegal reentries, citing a pattern of assaultive conduct that resulted
in significant physical injuries to family members, the sentencing leniency he
had received for his assault and theft convictions, and his repeated disregard
of laws prohibiting his reentry (for which he had received no punishment). The
district court could permissibly conclude that those aggravating factors
outweighed Ortiz-Najera’s proffered mitigating factors and that an upward



                                       2
    Case: 18-11331    Document: 00515013384     Page: 3   Date Filed: 06/27/2019


                                 No. 18-11331

variance was necessary to provide just punishment, to deter future criminal
conduct, and to protect the public. See United States v. Fraga, 704 F.3d 432,
440-41 (5th Cir. 2013).       Ortiz-Najera offers no discernible argument
challenging the extent of the variance, and thus we do not reach that issue.
See United States v. Charles, 469 F.3d 402, 408 (5th Cir. 2006).
      Because review is for plain error, Ortiz-Najera’s reasonableness and
constitutional challenges to the standard visitation condition are foreclosed by
this court’s opinion in United States v. Cabello, 916 F.3d 543, 544 (5th Cir.
2019).
      AFFIRMED.




                                       3
