United States v. Henriquez-Gomez ( 2021 )

Case: 20-20429 Document: 00515946435 Page: 1 Date Filed: 07/21/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
July 21, 2021
No. 20-20429 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Jose Exequiel Henriquez-Gomez,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:19-CR-703-1
Before Clement, Higginson, and Engelhardt, Circuit Judges.
Per Curiam:*
Jose Exequiel Henriquez-Gomez challenges his 48-month sentence of
imprisonment following his guilty plea conviction for being an alien, illegally
or unlawfully in the United States, in possession of a firearm.
*
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opinion should not be published and is not precedent except under the limited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: 20-20429 Document: 00515946435 Page: 2 Date Filed: 07/21/2021
No. 20-20429
Because Henriquez-Gomez “advocate[d] for a sentence shorter than
the one ultimately imposed,” he preserved his challenge to the substantive
reasonableness of the sentence. Holguin-Hernandez v. United States,
140 S. Ct. 762, 766-67 (2020). Accordingly, we review for abuse of
discretion. United States v. Johnson, 619 F.3d 469, 472 (5th Cir. 2010).
The record does not show that the district court failed to account for
a factor that should have received significant weight, gave significant weight
to an irrelevant or improper factor, or committed a clear error of judgment in
balancing the 18 U.S.C. § 3553(a) factors. See United States v. Smith,
440 F.3d 704, 708 (5th Cir. 2006). The district court properly considered
Henriquez-Gomez’s uncharged conduct under U.S.S.G. § 5K2.21 and as a
basis for an upward variance. United States v. Newsom, 508 F.3d 731, 735 (5th
Cir. 2007); United States v. Harris, 702 F.3d 226, 230-31 (5th Cir. 2012) (per
curiam). Despite Henriquez-Gomez’s arguments otherwise, the court made
no suggestion that it was considering any perceived benefit from Henriquez-
Gomez’s decision to plead guilty to the firearms charge rather than to an
illegal reentry offense. The court considered the parties’ arguments,
Henriquez-Gomez’s allocution, his criminal history, and the nature and
circumstances of his offense. Under the totality of the circumstances, the
sentence is not unreasonable. See United States v. Gerezano-Rosales, 692 F.3d
393, 400 (5th Cir. 2012).
The judgment of the district court is AFFIRMED.
2