United States v. Espino-Rosales ( 2023 )

Case: 22-20617 Document: 00516904182 Page: 1 Date Filed: 09/21/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 22-20617
FILED
September 21, 2023
Summary Calendar
____________ Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Pedro Ivan Espino-Rosales,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:20-CR-631-1
______________________________
Before Elrod, Oldham, and Wilson, Circuit Judges.
Per Curiam:*
Pedro Ivan Espino-Rosales appeals his 36-month above-guideline
sentence for illegal reentry by a previously deported noncitizen after a felony
conviction pursuant to 8 U.S.C. § 1326(a) and (b)(1). Espino-Rosales argues
that his sentence is substantively unreasonable because: (1) the district court
did not account for sentencing disparities when issuing its ruling; (2) the
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 22-20617
district court failed to account for his personal history and characteristics,
specifically his cultural assimilation; (3) the district court erred in considering
his circumstances as a whole.
This court reviews the substantive reasonableness of a sentence under
a deferential abuse-of-discretion standard. Gall v. United States, 552 U.S. 38,
46-47, 49-51 (2007). An above-guidelines sentence may be unreasonable “if
it (1) does not account for a factor that should have received significant
weight, (2) gives significant weight to an irrelevant or improper factor, or
(3) represents a clear error of judgment in balancing the sentencing factors.”
United States v. Warren, 720 F.3d 321, 332 (5th Cir. 2013) (internal quotation
marks and citation omitted).
Espino-Rosales fails to show that the district court abused its
discretion in varying above the sentencing guidelines. First, his sentencing
disparity argument fails as it makes no comparison between his offense
conduct, particular criminal history, aggravating or mitigating factors, and
related conduct of other defendants who received lesser sentences.
See United States v. Waguespack, 935 F.3d 322, 337 (5th Cir. 2019). Second,
although a sentencing court need not give dispositive weight to a defendant’s
cultural assimilation, see United States v. Rodriguez, 660 F.3d 231, 232, 234-
35 (5th Cir. 2011), the record shows the district court considered Espino-
Rosales’ cultural assimilation argument but found this factor to be
outweighed by his criminal history and pattern of illegally reentering the
country. Finally, though Espino-Rosales states otherwise, his argument that
the court improperly balanced the factors in light of the circumstances as a
whole ultimately suggests that the district court should have weighed the
sentencing factors differently. Disagreement with the district court’s
weighing of the 18 U.S.C. § 3553(a) factors is an insufficient ground for
reversal. United States v. Malone, 828 F.3d 331, 342 (5th Cir. 2016). In any
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No. 22-20617
event, the record shows the court considered and weighed all the factors, and
we give deference to its assessment of their import. See Gall, 552 U.S. at 51.
Espino-Rosales also argues that the district court committed a
substantive error when it relied on erroneous facts, specifically the use of the
words “every time,” “benefit” and “opportunities” when detailing his
criminal history and illegal reentries. Because he did not raise this argument
in the district court, review is limited to plain error. See United States v. Coto-
Mendoza, 986 F.3d 583, 586 (5th Cir. 2021).
The court committed no clear or obvious error as the presentence
report shows a pattern of unlawful entries followed by convictions for other
offenses. Further, given the court’s consideration of the proper factors and
the record, he has failed to demonstrate a “reasonable probability that, but
for the [claimed] error, he would have received a lesser sentence.” United
States v. Johnson, 943 F.3d 735, 738 (5th Cir. 2019).
AFFIRMED.
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