Case: 19-40801       Document: 00515398046         Page: 1     Date Filed: 04/28/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals

                                     No. 19-40801
                                                                                 Fifth Circuit

                                                                               FILED
                                   Summary Calendar                        April 28, 2020
                                                                          Lyle W. Cayce
UNITED STATES OF AMERICA,                                                      Clerk


                                                  Plaintiff - Appellee

v.

JULIO EDGAR RUIZ-BAUTISTA, also known as Julio Edgar Ruiz, Jr.,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:19-CR-73-1


Before BARKSDALE, HAYNES, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Julio Edgar Ruiz-Bautista challenges his above-Sentencing Guidelines
sentence of, inter alia, 54-months’ imprisonment, imposed upon his pleading
guilty, without a plea agreement, to reentry of a deported alien, in violation of
8 U.S.C. § 1326(a).         Prior to his first removal, Ruiz was convicted for
aggravated sexual assault of a child under the age of 14.




       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
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                                  No. 19-40801

      Ruiz contends the imposition of an upward variance was substantively
unreasonable because the district court erred: in balancing the sentencing
factors in 18 U.S.C. § 3553(a) by overvaluing his criminal history and
undervaluing his significant health problems; and in considering his criminal
history when the Guidelines already accounted for it.         We assume Ruiz’
assertions at his sentencing hearing regarding his desired sentence were
sufficient to preserve these challenges.      See Holguin-Hernandez v. United
States, 

, 764, 766–67 (2020).
      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, as in this instance, 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). The court abuses its discretion in
imposing a non-Guidelines sentence when it: “(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”. United States v. Diehl, 

, 724
(5th Cir. 2015) (citation omitted). For the following reasons, Ruiz fails to make
that showing.
      In determining the sentence, the court considered Ruiz’ presentence
investigation report, the Government’s motion for an upward departure, the
parties’ assertions at sentencing, and Ruiz’ allocution. The court took Ruiz’



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                                 No. 19-40801

deteriorating health and his need for dialysis into consideration but found his
health had not prevented him from reentering the United States illegally (Ruiz’
counsel responded to the court that Ruiz’s dialysis treatment had begun prior
to his illegal reentry). Finally, the court weighed the 18 U.S.C. § 3553(a)
sentencing factors and determined an upward variance was warranted based
on Ruiz’ underrepresented criminal history and the need to protect the public
from further criminal activity committed by him.
      Ruiz’ contention the Sentencing Guidelines already accounted for his
criminal history, rendering it an irrelevant or improper sentencing factor for
consideration pursuant to 18 U.S.C. § 3553(a), lacks merit. See United States
v. Brantley, 

, 348–350 (5th Cir. 2008). His challenge amounts to
a request for this court to reweigh the 18 U.S.C. § 3553(a) factors, which we
will not do, because “the sentencing court is in a better position to find facts
and judge their import under the § 3553(a) factors with respect to a particular
defendant”. 

(citation omitted).
      AFFIRMED.




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