United States v. Pavon-Rivera ( 2023 )

Case: 23-10069 Document: 00516919321 Page: 1 Date Filed: 10/04/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 23-10069 FILED
Summary Calendar October 4, 2023
____________ Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Jose Eugenio Pavon-Rivera,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:22-CR-59-1
______________________________
Before Jones, Southwick, and Ho, Circuit Judges.
Per Curiam: *
Jose Eugenio Pavon-Rivera appeals his 48-month sentence for illegal
reentry. Although the advisory guidelines range was 8 to 14 months of
imprisonment, the district court applied an upward variance to 48 months of
_____________________
*
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should not be published and is not precedent except under the limited circumstances set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: 23-10069 Document: 00516919321 Page: 2 Date Filed: 10/04/2023
No. 23-10069
imprisonment. Pavon-Rivera challenges the substantive reasonableness of
his sentence.
Pavon-Rivera contends that his sentence is substantively
unreasonable because it demonstrates that the district court clearly erred in
its balancing of the sentencing factors considering Pavon-Rivera’s history
and characteristics. Because Pavon-Rivera properly preserved his challenge
to the reasonableness of his sentence, we review for an abuse of discretion.
See United States v. Burney, 992 F.3d 398, 399-400 (5th Cir. 2021). In
imposing a non-guidelines sentence, a district court may consider factors
already taken into account by the Sentencing Guidelines, including a
defendant’s criminal history. United States v. Brantley, 537 F.3d 347, 350 (5th
Cir. 2008). Our review of the record does not reveal that the district court
gave significant weight to an irrelevant or improper factor or otherwise
abused its discretion by failing to account for a factor that should have
received significant weight or committing a clear error of judgment in
balancing the § 3553(a) factors. See Burney, 992 F.3d at 400. Moreover, as
to the extent of the variance, this court has upheld proportionately similar
upward variances. See, e.g., United States v. Jones, 444 F.3d 430, 433, 441-43
(5th Cir. 2006).
Pavon-Rivera also argues that 8 U.S.C. § 1326(b) is unconstitutional
because it permits a sentence above the otherwise applicable statutory
maximum based on facts that were not alleged in the indictment or found by
a jury beyond a reasonable doubt. As Pavon-Rivera concedes, his argument
is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998). See
United States v. Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019).
Accordingly, the judgment of the district court is AFFIRMED.
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