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United States v. Lario-Rios ( 2021 )


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  • Case: 21-40052       Document: 00515974803             Page: 1     Date Filed: 08/11/2021
United States Court of Appeals
for the Fifth Circuit                                        United States Court of Appeals
Fifth Circuit
FILED
August 11, 2021
No. 21-40052
Lyle W. Cayce
Summary Calendar                                    Clerk
United States of America,
Plaintiff—Appellee,
versus
Luis Enrique Lario-Rios,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
No. 7:20-CR-1286-1
Before Smith, Stewart, and Willett, Circuit Judges.
Per Curiam:*
Luis Lario-Rios appeals his sentence for being found in the United
States after deportation. For the first time on appeal, he contends that the
district court improperly characterized two Texas attempted-kidnapping
convictions as crimes of violence for the purpose of assessing criminal history
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this opin-
ion should not be published and is not precedent except under the limited circumstances
set forth in 5th Circuit Rule 47.5.4.
Case: 21-40052        Document: 00515974803         Page: 2     Date Filed: 08/11/2021
No. 21-40052
points per U.S.S.G. § 4A1.1(e). He relies on Kisor v. Wilkie,
    139 S. Ct. 2400
    (2019) and extra-circuit precedent to maintain that inchoate offenses do not
qualify as predicate crimes of violence under U.S.S.G. § 4B1.2(a).
As he acknowledges, plain error review applies, because Lario-Rios
failed to raise his claim before the district court. See Puckett v. United States,
    556 U.S. 129
    , 135 (2009); United States v. Soza,
    874 F.3d 884
    , 896−97 (5th
Cir. 2017). Lario-Rios cites no authority from this court addressing the effect
of Kisor on the guidelines in general or Application Note 1 of § 4B1.2 in
particular, and inchoate offenses may qualify as predicate offenses. See
United States v. Kendrick,
    980 F.3d 432
    , 444 (5th Cir. 2020), cert. denied,
    2021 WL 2637919
     (U.S. June 28, 2021) (No. 20-7667); United States v. Claiborne,
    132 F.3d 253
    , 256 (5th Cir. 1998); United States v. Lightbourn,
    115 F.3d 291
    ,
292−93 (5th Cir. 1997). Accordingly, Lario-Rios has failed to show plain
error. See Puckett,
    556 U.S. at 135
    ; United States v. Ceron,
    775 F.3d 222
    , 226
(5th Cir. 2014).
Lario-Rios contends that his 45-month non-guidelines sentence is sub-
stantively unreasonable. The district court was concerned with Lario-Rios’s
criminal history and in particular his three convictions of attempting to kid-
nap young girls. The decision to give greater weight to Lario-Rios’s criminal
history rather than his motives for returning to the United States reflected
reliance on proper factors such as his history and characteristics, the need to
promote respect for the law, the need for deterrence, and the need to protect
the public from further crimes by him. See United States v. Brantley,
    537 F.3d 347
    , 349−50 (5th Cir. 2008);
    18 U.S.C. § 3553
    (a). Lario-Rios’s disagreement
with the weighing of the sentencing factors is insufficient to demonstrate an
abuse of discretion. See Gall v. United States,
    552 U.S. 38
    , 51 (2007); United
States v. McElwee,
    646 F.3d 328
    , 337 (5th Cir. 2011).
AFFIRMED.
2