United States v. Othon Robledo-Cruz , 706 F. App'x 179 ( 2017 )

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Case: 17-40248 Document: 00514268140 Page: 1 Date Filed: 12/11/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-40248 FILED
Summary Calendar December 11, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
OTHON ROBLEDO-CRUZ,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:16-CR-973-1
Before JONES, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM: *
Othon Robledo-Cruz, a citizen of Mexico, pleaded guilty to illegal reentry
following a felony conviction, in violation of 8 U.S.C. § 1326(a) and (b)(1). He
was sentenced to 60 months’ imprisonment, a 46-month, upward variance from
his Sentencing Guidelines advisory sentencing range of 8 to 14 months.
Robledo asserts his sentence is substantively unreasonable and greater than
necessary to achieve the goals of 18 U.S.C. § 3553(a).
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 17-40248
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

, 48–51
(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). Robledo does not claim procedural error.
An above-Guidelines sentence is substantively unreasonable if 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.
Smith,

440 F.3d 704

, 708 (5th Cir. 2006) (internal citation omitted). Although
Robledo concedes his criminal history was properly considered at sentencing,
he contends the court placed too much emphasis on his prior state convictions
for second-degree murder and aggravated assault.
While the court primarily relied on the prior murder conviction in
imposing an upward variance, it supported its decision with a discussion of the
relevant 18 U.S.C. § 3553(a) sentencing factors.         This court “give[s] due
deference to the district court’s decision that the [18 U.S.C.] § 3553(a)
[sentencing] factors, on a whole, justify the extent of the variance”.

Gall, 552 U.S. at 51

.
Robledo asserts the 46-month variance is unwarranted given that his
second-degree-murder offense occurred nearly 17 years before his instant,
illegal-reentry offense. Nevertheless, his assertion that his conviction is too
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No. 17-40248
remote to justify an upward variance amounts to a mere disagreement with
the court’s weighing of the 18 U.S.C. § 3553(a) sentencing factors and is not a
sufficient basis for reversal.

Id. Further, Robledo

spent a considerable amount
of that 17 years incarcerated for killing one man, and shooting another with a
sawed-off shotgun. See United States v. Sanchez,

667 F.3d 555

, 569 (5th Cir.
2012) (rejecting similar assertion).
Although the sentence is 46 months greater than the top of the
Guidelines advisory sentencing range, it is below the 10-year statutory
maximum. 8 U.S.C. § 1326(b)(1). This court has upheld significantly greater
variances. E.g., United States v. Key,

599 F.3d 469

, 475–76 (5th Cir. 2010)
(upholding sentence of 216 months’ imprisonment where the top of the
Guidelines sentencing range was 57 months’ imprisonment); United States v.
Smith,

417 F.3d 483

, 492–93 (5th Cir. 2005) (affirming sentence of 120 months’
imprisonment where the top of the Guidelines range was 41 months’
imprisonment).
Robledo next contends the variance was not warranted because his
conviction for second-degree murder was accounted for in his Guidelines
sentencing range. Our court has held, however, that, in imposing an above-
Guidelines sentence, the court may rely on factors already taken into account
by the Guidelines. United States v. Brantley,

537 F.3d 347

, 350 (5th Cir. 2008).
Finally, Robledo maintains that his sentence is unreasonable given
illegal reentry is not a violent offense and this is his first prosecution for such
an offense. Our court has repeatedly rejected challenges to the substantive
reasonableness of a sentence based on the assertion that illegal reentry is
merely “an international trespass, not a crime of violence or a crime that posed
a danger to others”. United States v. Aguirre-Villa,

460 F.3d 681

, 683 (5th Cir.
3
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2006); see, e.g., United States v. Juarez-Duarte,

513 F.3d 204