United States v. Castro-Lopez

Case: 21-10254 Document: 00516125009 Page: 1 Date Filed: 12/10/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
December 10, 2021
No. 21-10254
Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Joel Castro-Lopez,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:20-CR-259-1
Before Higginbotham, Higginson, and Duncan, Circuit Judges.
Per Curiam:*
Joel Castro-Lopez appeals his 72-month sentence for illegal reentry
under 8 U.S.C. § 1326(a) and (b)(2). He concedes that the district court
provided adequate reasons to support the upward variance but asserts that
the court was further obligated under Rita v. United States, 551 U.S. 338*
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opinion should not be published and is not precedent except under the limited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: 21-10254 Document: 00516125009 Page: 2 Date Filed: 12/10/2021
No. 21-10254
(2007), to specifically address his nonfrivolous argument for a lower
sentence.
The record as a whole reflects that the district court considered
Castro-Lopez’s argument that he returned to the United States because his
daughter was ill with COVID-19. The argument appeared in the presentence
report, which the district court adopted, and was repeated by defense counsel
at sentencing and by Castro-Lopez during his allocution. The district court’s
express reasons for the sentence provided a reasoned basis for the upward
variance under the sentencing factors in 18 U.S.C. § 3553(a) and reflected an
implicit determination that his criminal history, history of immigration
violations, and likelihood of reoffending outweighed any mitigating effect of
his motive for returning. Accordingly, the court did not err by failing to
reference the argument. See Rita, 551 U.S. at 343-45, 356, 358-59; United
States v. Coto-Mendoza, 986 F.3d 583, 584, 586-87 & nn.4-6 (5th Cir.), cert.
denied, 2021 U.S. LEXIS 3947 (2021) (No. 20-8439); United States v. Becerril-
Pena, 714 F.3d 347, 351-52 (5th Cir. 2013). The Government’s motion for
summary affirmance is DENIED. See Groendyke Transp., Inc. v. Davis, 406
F.2d 1158, 1162 (5th Cir. 1969). In the interest of judicial economy, the
alternative motion for an extension of time to file a brief on the merits is
DENIED as unnecessary. The judgment of the district court is
AFFIRMED.
2