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   opinion should not be published and is not precedent except under the limited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.
Case: 19-11376      Document: 00515575079            Page: 2    Date Filed: 09/22/2020




                                      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, 

, 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.

United States v. Delgado-Martinez,
   

, 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, 

, 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, 

, 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, 

, 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, 

, 475–76 (5th Cir. 2010) (upholding 216-month
   sentence where Guidelines maximum was 57 months); United States v. Smith,
   

, 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, 

, 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, 

, 625–26 (5th Cir. 2007). Diaz correctly observes this




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                                   No. 19-11376


   challenge is foreclosed by our precedent and seeks only to preserve the issue
   for possible further review.

          AFFIRMED.




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