United States v. Jaimes-Denis ( 2021 )

Case: 20-40396 Document: 00515725147 Page: 1 Date Filed: 01/29/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
January 29, 2021
No. 20-40396 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Rogelio Jaimes-Denis,
Defendant—Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:19-CR-136-1
Before Jolly, Elrod, and Graves, Circuit Judges.
Per Curiam:*
Rogelio Jaimes-Denis appeals his 92-month, above-guidelines range
sentence for illegal reentry by a deported alien, contending that it is
substantively unreasonable because the district court gave insufficient
consideration to the advisory guidelines range of 37 to 46 months and clearly
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-40396 Document: 00515725147 Page: 2 Date Filed: 01/29/2021
No. 20-40396
erred in balancing the 18 U.S.C. § 3553(a) sentencing factors. Concluding
that there was no abuse of discretion, we affirm. See United States v. Key,
599 F.3d 469, 475 (5th Cir. 2010).
The record reflects that the district court considered “the applicable
category of offense committed by the applicable category of defendant as set
forth in the guidelines.” § 3553(a)(4)(A); see generally United States v. Peltier,
505 F.3d 389, 392 (5th Cir. 2007). However, although “the Guidelines
should be the starting point and the initial benchmark” of sentencing, they
“are not the only consideration.” Gall v. United States, 552 U.S. 38, 49
(2007). To that end, the district court cited Jaimes-Denis’s extensive
criminal history, involving multiple convictions for illegal reentry and driving
while intoxicated, as a basis for finding a sentence within the guidelines range
inadequate to effectively protect the public and deter Jaimes-Denis from
future criminal conduct. See § 3553(a)(2)(B)-(C).
Jaimes-Denis fails to show why, in light of the foregoing, we should
not “give due deference to the district court’s decision that the § 3553(a)
factors, on a whole, justify the extent of the variance.” Gall, 552 U.S. at 51.
In addition, his argument that the district court could not predicate its above-
guidelines sentence on factors that were used to calculate the guidelines
range is foreclosed. See Key, 599 F.3d at 475; United States v. Smith, 440 F.3d
704, 708 (5th Cir. 2006). Lastly, we reject Jaimes-Denis’s conclusory
assertion that the district court erred in balancing the § 3553(a) factors. See
United States v. Charles, 469 F.3d 402, 408 (5th Cir. 2006).
AFFIRMED.
2