Case: 20-40029     Document: 00515612781         Page: 1     Date Filed: 10/22/2020




              United States Court of Appeals
                   for the Fifth Circuit                           United States Court of Appeals
                                                                            Fifth Circuit

                                                                          FILED
                                                                    October 22, 2020
                                  No. 20-40029
                                                                     Lyle W. Cayce
                                Summary Calendar                          Clerk


   United States of America,

                                                             Plaintiff—Appellee,

                                       versus

   Mario Tapia-Barajas, also known as Oswaldo Alvarez-
   Colindres, also known as Martin Pena,

                                                         Defendant—Appellant.


                  Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 2:19-CR-1555-1


   Before Davis, Stewart, and Dennis, Circuit Judges.
   Per Curiam:*
          Mario Tapia-Barajas appeals the within-guidelines 18-month sentence
   imposed following his guilty plea to illegally reentering the United States
   following a prior deportation. He argues that his sentence was substantively



          *
            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   opinion should not be published and is not precedent except under the limited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. 20-40029


   unreasonable because it was greater than necessary to achieve the goals of
   18 U.S.C. § 3553(a). He also contends that the district court erred by
   considering his bare arrest record. Although he frames this in terms of
   substantive reasonableness, we have considered this issue in terms of
   procedural error. See United States v. Harris, 

, 229 (5th Cir.
   2012).
            We review the unpreserved challenge to the consideration of the bare
   arrest record for plain error. See Puckett v. United States, 

, 135
   (2009); United States v. Williams, 

, 493 (5th Cir. 2010). The
   district court did not expressly refer to or rely on Tapia-Barajas’s bare arrest
   record at sentencing. Further, even if the court had clearly or obviously
   erred, Tapia-Barajas does not even allege that, but for the court’s
   consideration of his bare arrest record, he would have received a lesser
   sentence. Thus, he has not demonstrated reversible plain error. See 

.
            In another unpreserved claim of procedural error, Tapia-Barajas
   suggests that the district court “categorically refuse[d] to consider” the
   applicable guidelines sentencing range, and he conclusionally asserts that
   “[t]he district court abused its discretion by not properly calculating the
   punishment range under the guidelines, amendments and policy statements
   of retroactivity.” He has abandoned these arguments by failing to adequately
   brief them. See United States v. Scroggins, 

, 446-47 (5th Cir.
   2010); see also Fed. R. App. P. 28(a)(8). In any case, they are flatly
   contradicted by the record.
            By arguing for a four-month sentence in the district court, Tapia-
   Barajas preserved his claim that his 18-month sentence is substantively
   unreasonable. See Holguin-Hernandez v. United States, 

, 766-
   67 (2020). The within-guidelines sentence imposed here is entitled to a




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                                     No. 20-40029


   presumption of reasonableness, United States v. Alonzo, 

, 554
   (5th Cir. 2006), that may be rebutted only “by showing that the sentence
   does not account for factors that should receive significant weight, gives
   significant weight to irrelevant or improper factors, or represents a clear error
   of judgment in balancing sentencing factors,” United States v. Rashad, 

, 644 (5th Cir. 2012). Tapia-Barajas has not shown that his bare
   arrest record received any weight, much less significant weight in the district
   court’s sentencing decision. We have also rejected arguments like his that a
   sentence is substantively unreasonable because U.S.S.G. § 2L1.2 double
   counts criminal history, see United States v. Duarte, 

, 529-31 (5th
   Cir. 2009), and because the prior conviction is remote, see United States v.
   Rodriguez, 

, 234 (5th Cir. 2011). The record shows that the court
   listened to Tapia-Barajas’s mitigating arguments and considered the 18
   U.S.C. § 3553(a) factors.          Given the appellate presumption of
   reasonableness, see 

, and the deference owed to the
   district court’s weighing of the § 3553(a) factors, see United States v. Campos-
   Maldonado, 

, 339 (5th Cir. 2008), Tapia-Barajas has not shown
   that his 18-month within-guidelines sentence is substantively unreasonable.
          In light of the foregoing, the judgment of the district court is
   AFFIRMED.




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