United States v. Yudeluis Jimenez-Elvirez ( 2019 )

Case: 18-40941 Document: 00515115427 Page: 1 Date Filed: 09/12/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-40941 FILED
Summary Calendar September 12, 2019
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
YUDELUIS ALBERTO JIMENEZ-ELVIREZ,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:15-CR-1313-2
Before WIENER, HAYNES, and COSTA, Circuit Judges.
PER CURIAM: *
Defendant-Appellant Yudeluis Alberto Jimenez-Elvirez appeals his
concurrent, 84-month, above-guidelines range sentences for six counts of
conspiracy to transport an undocumented alien within the United States,
which were imposed following the vacatur of his original, 97-month sentences
on those counts. Jimenez-Elvirez contends that his present sentences are both
procedurally and substantively unreasonable for the same reasons: The
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 18-40941 Document: 00515115427 Page: 2 Date Filed: 09/12/2019
No. 18-40941
district court failed to adequately consider his rehabilitative efforts during his
initial incarceration and gave too much weight to the risk of harm caused by
his alien smuggling activities as well as his recidivism. We affirm.
Jimenez-Elvirez fails to show clear or obvious procedural error. See
Puckett v. United States, 556 U.S. 129, 134 (2009); United States v. Mondragon-
Santiago, 564 F.3d 357, 361 (5th Cir. 2009). Contrary to his assertion, the
district court explicitly considered his rehabilitation but concluded, in its
discretion, that his postsentence conduct did not warrant a lower sentence. See
Pepper v. United States, 562 U.S. 476, 491-93 (2011). Moreover, the district
court’s findings as to risk of harm and recidivism were adequately supported
by the unobjected-to presentence report and supported the imposition of a
nonguidelines sentence despite also factoring into the calculation of Jimenez-
Elvirez’s guidelines range. See United States v. Key, 599 F.3d 469, 475 (5th
Cir. 2010). Jimenez-Elvirez cites no authority to the contrary. See United
States v. Gonzalez, 792 F.3d 534, 538 (5th Cir. 2015).
Nor does Jimenez-Elvirez demonstrate substantive sentencing error,
plain or otherwise. He identifies no 18 U.S.C. § 3553(a) factor that received
either insufficient or inordinate weight or any clear error in balancing the
sentencing factors. See United States v. Smith, 440 F.3d 704, 708 (5th Cir.
2006). Rather, he merely disagrees with the district court’s weighing of the
§ 3553(a) factors. See United States v. Malone, 828 F.3d 331, 342 (5th Cir.
2016). Considering the totality of the supporting circumstances, we defer to
the district court’s decision that the § 3553(a) factors, on the whole, justify the
extent of the variance in this case. See Gall v. United States, 552 U.S. 38, 51
(2007); United States v. McElwee, 646 F.3d 328, 346 (5th Cir. 2011).
AFFIRMED.
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