United States v. Antonio Diaz-Agurcia

Case: 19-11376 Document: 00515575079 Page: 1 Date Filed: 09/22/2020
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
September 22, 2020
No. 19-11376 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Antonio Diaz-Agurcia,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:19-CR-92-1
Before Barksdale, Graves, and Oldham, Circuit Judges.
Per Curiam:*
Antonio Diaz-Agurcia pleaded guilty to one count of illegally reentry,
in violation of 8 U.S.C. §§ 1326(a), (b)(1), and (b)(2). He was sentenced to,
inter alia, 61-months’ imprisonment, an upward variance from an advisory
*
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opinion should not be published and is not precedent except under the limited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.
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No. 19-11376
Sentencing Guidelines sentencing range of 33- to 41-months’ imprisonment.
Diaz asserts: his sentence was substantively unreasonable; and the district
court imposed an unconstitutional sentencing enhancement relating to 8
U.S.C. §§ 1326(b)(1) and (b)(2) (establishing sentencing enhancement when
removal follows, inter alia, a felony or aggravated-felony conviction).
Although post-Booker, the Guidelines are advisory only, the district
court must avoid significant procedural error, such as improperly calculating
the Guidelines sentencing range. Gall v. United States, 552 U.S. 38, 46, 51
(2007). If no such procedural error exists, a properly preserved objection to
an ultimate sentence is reviewed for substantive reasonableness under an
abuse-of-discretion standard. Id. at 51; United States v. Delgado-Martinez,
564 F.3d 750, 751–53 (5th Cir. 2009). In that respect, for issues preserved in
district court, its application of the Guidelines is reviewed de novo; its factual
findings, only for clear error. E.g., United States v. Cisneros-Gutierrez, 517
F.3d 751, 764 (5th Cir. 2008). As noted, procedural error is not claimed.
An upward variance is unreasonable if the sentence “(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” in 18 U.S.C. § 3553(a).
United States v. Chandler, 732 F.3d 434, 437 (5th Cir. 2013) (citation
omitted). Diaz contends the court erred in balancing the § 3553(a)
sentencing factors when it neglected the mitigating circumstances of his time
in state custody and cultural assimilation. His claim fails; there was no abuse
of discretion.
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No. 19-11376
In that regard, the court considered Diaz’ claims for mitigation but
found them outweighed by his criminal history, the need for adequate
deterrence, and the necessary protection of the public. See 18 U.S.C.
§ 3553(a)(2)(B)–(C). The court appropriately considered Diaz’ criminal
history and pattern of illegal reentry into the United States in choosing an
above-Guidelines sentence. See United States v. Smith, 440 F.3d 704, 709
(5th Cir. 2006) (“A defendant’s criminal history is one of the factors that a
court may consider in imposing a non-Guideline sentence.”). His sentence
is well within the range of upward variances we have upheld. See, e.g., United
States v. Key, 599 F.3d 469, 475–76 (5th Cir. 2010) (upholding 216-month
sentence where Guidelines maximum was 57 months); United States v. Smith,
417 F.3d 483, 492 (5th Cir. 2005) (upholding 120-month sentence where
Guidelines maximum was 41 months).
For his other claim, Diaz maintains the court imposed an
unconstitutional sentencing enhancement under 8 U.S.C. §§ 1326(b)(1) and
(2) because his prior convictions were not alleged in the indictment or found
by a jury beyond reasonable doubt. In Almendarez-Torres, however, the
Supreme Court held that, for purposes of a statutory sentencing
enhancement, neither of those factors for a prior conviction are required.
Almendarez-Torres v. United States, 523 U.S. 224, 239–47 (1998). And, our
court has held Almendarz-Torres “remains binding precedent until and unless
it is officially overruled by the Supreme Court”. United States v. Pineda-
Arrellano, 492 F.3d 624, 625–26 (5th Cir. 2007). Diaz correctly observes this
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challenge is foreclosed by our precedent and seeks only to preserve the issue
for possible further review.
AFFIRMED.
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