United States v. Rodriguez-Castro ( 2023 )

Case: 23-10120 Document: 00516919069 Page: 1 Date Filed: 10/03/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 23-10120
Summary Calendar FILED
____________ October 3, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Juan Antonio Rodriguez-Castro,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:20-CR-477-1
______________________________
Before Elrod, Oldham, and Wilson, Circuit Judges.
Per Curiam: *
Juan Antonio Rodriguez-Castro appeals his 120-month, above-
guidelines sentence for illegally reentering the United States following a prior
removal, contending that the sentence is substantively unreasonable because
it represents a clear error of balancing the 18 U.S.C. § 3553(a) factors. See
United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006). The crux of
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 23-10120
Rodriguez-Castro’s challenge is that the district court overstated the
seriousness of his prior convictions for indecent exposure and driving while
intoxicated (DWI) in determining that an above-guidelines sentence was
warranted. See § 3553(a)(2)(B)-(C). We review a preserved objection to a
sentence’s substantive reasonableness for an abuse of discretion, examining
the totality of the circumstances. Gall v. United States, 552 U.S. 38, 51, 56
(2007).
Rodriguez-Castro fails to show that the district court’s assessment of
his criminal history was an abuse of discretion. Specifically, it is not
implausible that members of the public, including children, could have been
exposed to his indecent act or that his driving drunk posed a substantial risk
of danger to the public if he were to repeat that conduct. See id.; see also
United States v. Botello-Zepeda, 933 F.3d 452, 455 (5th Cir. 2019) (affirming
upward variance based on prior DWI convictions where a concern for public
safety was the primary factor). Further, the district court’s decision to vary
upward was also based on Rodriguez-Castro’s prior conviction for family
violence assault and his numerous prior illegal reentries, the characterization
of which Rodriguez-Castro does not challenge.
Rodriguez-Castro’s reliance on United States v. Hoffman, 901 F.3d 523(5th Cir. 2018), is unavailing, as are his related arguments. The district court
implicitly considered the reasons why the presentence report (PSR)
calculated an advisory range of 51 to 63 months by adopting the PSR, and it
expressly stated it had considered the guidelines range in determining the
sentence. Moreover, that the guidelines range already took into account his
prior illegal reentries and one of his DWI convictions does not render the
sentence unreasonable. See United States v. Brantley, 537 F.3d 347, 350 (5th
Cir. 2008); see also Smith, 440 F.3d at 708 (noting that a court may consider
criminal history when imposing a non-guidelines sentence). Given the
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No. 23-10120
deference owed the district court’s determination, see Gall, 552 U.S. at 51,
Rodriguez-Castro’s 120-month sentence is not substantively unreasonable.
AFFIRMED.
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