United States v. Rivera

Case: 20-50789 Document: 00516045295 Page: 1 Date Filed: 10/06/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
October 6, 2021
No. 20-50789 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Ricky Rivera,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:18-CR-283-13
Before King, Costa, and Ho, Circuit Judges.
Per Curiam:*
Ricky Rivera appeals the 264-month sentence imposed following his
guilty plea conviction for conspiring to possess with intent to distribute and
distribution of methamphetamine. Although his advisory guidelines range
was 151 to 188 months of imprisonment, the district court departed upwardly
*
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opinion should not be published and is not precedent except under the limited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: 20-50789 Document: 00516045295 Page: 2 Date Filed: 10/06/2021
No. 20-50789
pursuant to, inter alia, U.S.S.G. § 4A1.3. Rivera challenges the procedural
and substantive reasonableness of his sentence. This court need not decide
the appropriate standard that applies to the issues Rivera raises on appeal,
because Rivera’s claims fail even under the less deferential standards of
review. See United States v. Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008).
First, Rivera argues that the district court erred in imposing such a
substantial upward departure without moving incrementally through the
sentencing table as dictated by § 4A1.3(a)(4)(B). However, as Rivera
concedes, the sentencing court need not go through a ritual of addressing and
then rejecting each intermediate adjustment on the sentencing table before
imposing its sentence and did not err in failing to expressly do so. See United
States v. Zuniga-Peralta, 442 F.3d 345, 348 n.2 (5th Cir. 2006). The district
court gave appropriate reasons for the departure, which is sufficient. See id.Second, Rivera challenges the substantive reasonableness of his
sentence. In reviewing a properly preserved challenge to the substantive
reasonableness of an upward departure, this court evaluates both “the
district court’s decision to depart upwardly and the extent of that departure
for abuse of discretion.” Id. at 347 (internal quotation marks and citation
omitted). Here, the record shows the district court considered all relevant
information and arguments as well as the sentencing factors in 18 U.S.C.
§ 3553(a). There is no evidence that the district court failed to account for a
factor that should have received significant weight, gave significant weight to
an irrelevant or improper factor, or committed a clear error of judgment in
balancing the § 3553(a) factors. See United States v. Smith, 440 F.3d 704, 708
(5th Cir. 2006). Rivera’s disagreement with how the court weighed relevant
factors “is not a sufficient ground for reversal.” United States v. Malone, 828
F.3d 331, 342 (5th Cir. 2016) (footnote omitted). Moreover, as to the extent
of the departure, this court has upheld greater upward departures. See United
States v. Daughenbaugh, 49 F.3d 171, 174-75 (5th Cir. 1995); United States v.
2
Case: 20-50789 Document: 00516045295 Page: 3 Date Filed: 10/06/2021
No. 20-50789
Lavalais, 960 F.3d 180, 189-90 (5th Cir. 2020), cert. denied, 2021 WL 2519200(U.S. June 21, 2021) (No. 20-5489).
The judgment of the district court is AFFIRMED.
3