     Case: 16-51315      Document: 00514170733         Page: 1    Date Filed: 09/26/2017




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

                                    No. 16-51315                                 FILED
                                  Summary Calendar                       September 26, 2017
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

SERGIO MICHEL-VILLALOBOS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:16-CR-328-1


Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Sergio Michel-Villalobos appeals his above-guidelines sentence of 60
months of imprisonment arising from his guilty-plea conviction for attempted
illegal reentry after deportation. Michel-Villalobos asserts that his sentence
was unreasonable in that the district court improperly relied upon informal
and unauthenticated foreign documents as evidence of charges and convictions
rendered by a foreign judicial system lacking adequate due process protections.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-51315

      “We review the reasonableness of a sentence for abuse of discretion,
whether it is inside or outside the guidelines range.” United States v. Fuentes,
775 F.3d 213, 218 (5th Cir. 2014) (internal quotation marks and citation
omitted).   Sentences are reviewed for both procedural and substantive
reasonableness, and the district court’s application of the sentencing
guidelines is reviewed de novo while its factual findings are reviewed for clear
error. Id. at 218-19.
      In evaluating the procedural reasonableness of a sentence, we consider
whether the district court committed a significant procedural error, such as
failing to calculate or incorrectly calculating the guidelines range, treating the
Guidelines as mandatory, failing to consider the § 3553(a) sentencing factors,
or basing the sentence on clearly erroneous facts. Id. at 218. The record does
not support Michel-Villalobos’s first procedural argument that the district
court erroneously based his sentence on uncharged foreign criminal conduct.
The district court made clear that it was not relying on Michel-Villalobos’s
Mexican “rap sheet” or a media report referencing his arrest for a Mexican
theft offense, but was focusing instead on “the controlling issue” of his valid
Mexican homicide conviction.
      Neither is there merit to Michel-Villalobos’s contention that the district
court erroneously relied upon the allegedly inadequate documentation
underlying the finding of the presentence report (PSR) regarding his Mexican
homicide conviction.      Michel-Villalobos failed to establish with rebuttal
evidence, or even to assert in the district court or in this appeal, that the PSR’s
finding that he had been convicted of homicide in Mexico was materially
untrue. See United States v. Nava, 624 F.3d 226, 230-31 (5th Cir. 2010). The
district court was therefore free to adopt the PSR’s finding regarding the
existence of that conviction without further inquiry. See United States v. Mir,



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                                  No. 16-51315

919 F.2d 940, 943 (5th Cir. 1990); see also United States v. Ramirez, 367 F.3d
274, 277 (5th Cir. 2004).
      Third, there is no merit to Michel-Villalobos’s challenge to the district
court’s consideration of his Mexican homicide conviction based on the Mexican
judicial system’s allegedly inadequate due process protections. The defendant
has the burden of proving the constitutional invalidity of a prior conviction
used for sentencing purposes. United States v. Richardson, 781 F.3d 237, 249
(5th Cir. 2015). Michel-Villalobos has failed to carry this burden, as he has not
even asserted in either the district court or this court that he was personally
deprived of due process in his own Mexican homicide conviction proceedings.
      Finally, Michel-Villalobos has likewise failed to establish that his
sentence was substantively unreasonable in light of the 18 U.S.C. § 3553(a)
sentencing factors. See Fuentes, 775 F.3d at 218. A district court’s decision to
depart upward does not constitute an abuse of discretion “if the district court’s
reasons for departing: (1) advance the objectives set forth in [§ 3553(a)(2)], and
(2) are justified by the facts of the case.” United States v. Zelaya-Rosales, 707
F.3d 542, 546 (5th Cir. 2013) (internal quotation marks and citation omitted).
While Michel-Villalobos reasserts his procedural arguments in contending that
an upward departure was not supported by the facts of this case, he has failed
to brief, and has thereby abandoned, any argument that the district court’s
reasons for upwardly departing did not advance the objectives of § 3553(a)(2).
See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). Because Michel-
Villalobos has thus failed to establish that the district court’s sentence was
substantively unreasonable as an upward departure, his challenge to the
district court’s alternative variance basis for the sentence need not be
considered. See Fuentes, 775 F.3d at 219.
      The judgment of the district court is AFFIRMED.



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