United States v. Cortez-Balderas ( 2023 )

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United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
____________ FILED
July 26, 2023
No. 22-30296 Lyle W. Cayce
____________ Clerk
United States of America,
Plaintiff—Appellee,
versus
Martin Cortez-Balderas,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:21-CR-146-1
______________________________
Before Haynes and Engelhardt, Circuit Judges, and Saldaña,
District Judge. *
Per Curiam:
Martin Cortez-Balderas pleaded guilty to one count of identity theft
(18 U.S.C. § 1028) and one count of possession of a firearm by a convicted
felon (18 U.S.C. §§ 922(g)(1) and 924(a)(2)). The district court found the
calculated guidelines range of 15 to 21 months to be “woefully unreasonable”
and varied upwards to a total of 72 months of imprisonment, which consisted
_____________________
*
United States District Judge for the Southern District of Texas, sitting by
designation.
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of a sentence of 36 months for the identity theft offense and a concurrent
sentence of 72 months for the firearm offense. On appeal, Cortez-Balderas
challenges only the substantive reasonableness of the 72-month sentence for
the firearm offense.
Because Cortez-Balderas objected to the sentence imposed and
argued for a shorter sentence, he preserved a challenge to the substantive
reasonableness of the sentence. See Holguin-Hernandez v. United States, 140
S. Ct. 762, 766–67 (2020). We review a preserved objection to the
substantive reasonableness of a sentence for an abuse of discretion,
“examining the totality of the circumstances.” United States v. Warren, 720
F.3d 321, 332 (5th Cir. 2013). When evaluating substantive reasonableness,
“[a]n above-Guidelines sentence unreasonably fails to reflect the statutory
sentencing factors set forth in section [18 U.S.C. §] 3553(a) only where 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 factors.” United States
v. Churchwell, 807 F.3d 107, 123 (5th Cir. 2015) (internal quotation marks and
citation omitted).
Cortez-Balderas raises a variety of challenges to the substantive
reasonableness of his sentence. He argues that the district court did not
account for the guidelines range and varied from the applicable statutory
maximum for the firearm offense. He also argues that the district court
abused its discretion by relying on its own policy of sentencing above the
guidelines range for firearm offenses, by giving significant weight to the
statements of the victim of the identity theft offense, by giving significant
weight to the fact that he has no legal immigration status, and by giving
significant weight to a prior conviction for importation of marijuana. Cortez-
Balderas further asserts that the district court made a clear error of judgment
in balancing the sentencing factors of § 3553(a).
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We conclude that Cortez-Balderas has not shown that the district
court abused its discretion. See Warren, 720 F.3d at 332. First, the district
court clearly considered the guidelines range and then varied upward from it.
Although the district court suggested that it often imposes a higher sentence
in cases involving firearms, the district court’s other comments show that the
sentence imposed in this case was based on permissible considerations and
not simply on a mechanical approach or personal policy. Cf. United States v.
Lamp, 779 F.2d 1088, 1098 (5th Cir. 1986). Similarly, although it was
discussed at sentencing, the district court did not give significant weight to
Cortez-Balderas’s lack of legal immigration status. We also conclude that the
district court did not abuse its discretion by giving significant weight to
Cortez-Balderas’s prior marijuana importation offense, which is the
predicate offense for his firearm conviction, and to the statements of the
victim of the identity theft, see United States v. Diehl, 775 F.3d 714, 725 (5th
Cir. 2015). Finally, Cortez-Balderas has not shown that the district court
made a clear error of judgment in balancing the sentencing factors of
§ 3553(a), and we decline to reweigh those factors. See United States v.
Hernandez, 876 F.3d 161, 167 (5th Cir. 2017).
AFFIRMED.
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Kurt D. Engelhardt, Circuit Judge, concurring:
I concur in the per curiam opinion that the judgment should be af-
firmed. But I believe that opinion does not sufficiently explain the record
facts before the district court. To fully appreciate the “individualized assess-
ment” reasonably made by the district court in evaluating the § 3553(a) fac-
tors, a much more complete review of the defendant’s relevant conduct is in
order. Indeed, in doing so, we can more directly, specifically, and fully ad-
dress the issues he raises on appeal.
I.
As a result of the Supreme Court’s decision in United States v. Booker,
543 U.S. 220 (2005), the United States Sentencing Guidelines are advisory,
and appellate review of sentencing decisions is limited to determining
whether they are “reasonable.” Gall v. United States, 552 U.S. 38, 46 (2007).
Even so, the Sentencing Guidelines are “the starting point and the initial
benchmark.” Id. at 49. Thus, “a district court should begin all sentencing
proceedings by correctly calculating the applicable Guidelines range.” Id.;
United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006) (district court must
calculate the guideline range and consider it advisory).
After giving both parties an opportunity to argue for whatever sen-
tence they think is appropriate, the district judge considers all of the
§ 3553(a) factors to determine whether they support the sentence requested
by a party. Id. at 49–50. The § 3553(a) sentencing factors include: (1) the
nature and circumstances of the offense and the history and characteristics
of the defendant; (2) the need for the sentence to reflect the seriousness of
the offense and provide just punishment, protect the public from further
crimes of the defendant, and provide the defendant with needed correctional
treatment; (3) the kinds of sentences available; (4) the Sentencing Guide-
lines and any relevant policy statements; and (5) the need to avoid
4
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unwarranted sentence disparities among defendants with similar records who
have been found guilty of similar conduct. See 18 U.S.C. § 3553(a); Gall, 552
U.S. at 50 n. 6.
The district judge’s consideration of the § 3553(a) factors requires an
“individualized assessment based on the facts presented.” Id. at 50. “If he
decides that an outside-Guidelines sentence is warranted, he must consider
the extent of the deviation and ensure that the justification is sufficiently
compelling to support the degree of the variance.” Id. “[A] major [deviation]
should be supported by a more significant justification than a minor one.” Id.
“After settling on the appropriate sentence, [the district judge] must ade-
quately explain the chosen sentence to allow for meaningful appellate review
and to promote the perception of fair sentencing.” Id.
Given the process outlined in Gall, appellate review of a sentence is
bifurcated. United States v. Scott, 654 F.3d 552, 554 (5th Cir. 2011). First, we
determine whether the district court committed procedural error. 1 If the
sentencing decision is procedurally sound, we then assess the substantive
reasonableness of the sentence that was imposed. Gall, 552 U.S. at 51. In
this appeal, Cortez-Balderas challenges only the substantive reasonableness
of the 72-months sentence of imprisonment that he received for his
§ 922(g)(1) firearm offense.
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1
Procedural errors include: “(1) failing to calculate (or improperly calculating) the
applicable Guidelines range; (2) treating the Guidelines as mandatory; (3) failing to
consider the 18 U.S.C. § 3553(a) factors; (4) determining a sentence based on clearly
erroneous facts; or (5) failing to adequately explain the chosen sentence, including an
explanation for any deviation from the Guidelines range.” Scott, 654 F.3d at 555 (quoting
United States v. Armstrong, 550 F.3d 382, 404 (5th Cir. 2008)). The district court’s
interpretation or application of the sentencing guidelines are reviewed de novo; its factual
findings are reviewed for clear error.” Id. at 51.
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“A non-Guidelines sentence unreasonably fails to reflect the statutory
sentencing factors set forth in § 3553(a)” 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.
Smith, 440 F.3d at 708. We evaluate the substantive reasonableness of the
sentence utilizing an abuse-of-discretion standard of review. Gall, 552 U.S.
at 51. In doing so, we consider “the totality of the circumstances, including
the extent of any variance from the Guidelines range.” Id.“The farther a sentence varies from the applicable Guidelines
sentence, the more compelling the justification based on factors in section
3553(a) must be.” Smith, 440 F.3d at 707 (internal quotation marks and
citation omitted). Even so, “the appellate court must give due deference to
the district court’s decision that the § 3553(a) factors, on a whole, justify the
extent of the variance.” Gall, 552 U.S. at 51. Thus, our “review for
substantive reasonableness is ‘highly deferential,’ 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.” United States v.
Hernandez, 633 F.3d 370, 375 (5th Cir. 2011) (quoting United States v. Key,
599 F.3d 469, 473 (5th Cir. 2010)).
Even a significant variance from the Guidelines does not constitute an
abuse of discretion if it is “commensurate with the individualized, case-
specific reasons provided by the district court.” United States v. McElwee, 646
F.3d 328, 338 (5th Cir. 2011) (quoting United States v. Herrera–Garduno, 519
F.3d 526, 531 (5th Cir. 2008)). And, importantly, “[t]he fact that the
appellate court might reasonably have concluded that a different sentence
was appropriate is insufficient to justify reversal of the district court.” Gall,
552 U.S. at 51.
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II.
Cortez-Balderas asserts a number of related challenges to the
substantive reasonableness of the firearm offense’s 72-months prison
sentence. Given the totality of circumstances reflected in the record of this
matter, however, none of his challenges have merit.
Personal Policy of Varying Upward
In challenging the substantive reasonableness of his firearm offense
sentence, Cortez-Balderas first contends that the district court failed to
properly account for the applicable Guidelines range—15 to 21 months’
imprisonment—that the Supreme Court has said should be the “starting
point and initial benchmark” in sentencing. Gall, 552 U.S. at 49. Instead, he
maintains that the district court, following its own “personal policy” of
sentencing § 922(g)(1) firearm offenses above the otherwise applicable
Guidelines range, determined his sentence based on the statutory maximum
sentence of 120 months, which then was reduced to 72 months only because
of the adverse impact that his imprisonment had upon his three minor
children. (“The only reason I’m not giving you ten years is because of your
children. I’m just telling you that right now. You deserve it.”)
Contrary to Cortez-Balderas’ assertions, the record clearly reflects
that the district court considered the 15 to 21 months’ Guidelines range and
then, finding it “woefully unreasonable,” varied upward in accordance with
the process described in Gall and its progeny. And, though the district
court’s comments during the May 17, 2022 sentencing hearing confirm that
it previously has imposed upward-varying non-Guidelines sentences in other
§ 922(g)(1) firearm cases, 2 the court’s stated reasons, considered as a whole
_____________________
2
The district judge stated: “You don’t know my track record. With a prior
distribution of kilos of marijuana into our country, I would. I’ve done it in the past. I had
one of your predecessors, Mr. Schwab, say ‘I don’t know why we plead clients guilty to
7
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and in proper context, show that Cortez-Balderas’ sentence was based on
permissible individualized considerations, not an invalid fixed, or
mechanical, personal sentencing policy. See United States v. Lamp, 779 F.2d
1088, 1098 (5th Cir. 1986) (judge’s statement that he could not recall having
declined to impose a term of imprisonment for a certain offense did not
demonstrate a mechanical sentencing policy precluding consideration of a
probationary sentence); United States v. Cavazos, 530 F.3d 4, 6 (5th Cir. 1976)
(refusing to condone mechanical sentencing policy that eliminated probation
from consideration based solely on the crime category); United States v.
Hartford, 489 F.2d 652, 655–56 (5th Cir. 1974) (rigid sentencing policy of
automatically imposing the maximum sentence for the particular type of
offense, rather than the individualized record of the defendant, abused
judicial discretion and abdicated judicial responsibility).
Irrelevant and Improper Sentencing Factors
Cortez-Balderas also argues that the district court abused its
discretion in determining the sentence for his § 922(g)(1) firearm offense by
giving significant weight to factors that he contends are irrelevant and
improper. First, Cortez-Balderas maintains that he received an above-
Guidelines prison sentence for the § 922(g)(1) firearm offense largely
because of the substantial negative impact that the identity theft offense had
on the victim of that crime, Joe Daniel Pineda. Although not contesting the
many and varied hardships suffered by Mr. Pineda, Cortez-Balderas
contends that they cannot support his above-Guidelines sentence for the
firearm offense because the two offenses have no factual connection beyond
his own involvement. He additionally argues that the district court chose the
upward variance for the firearm offense as an invalid means of increasing his
_____________________
[being] convicted felons with firearms because you’re always going above the maximum.’
I would, and I’ll say that for the record as well.”)
8
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punishment for the identity theft offense above the maximum amount
permitted by 18 U.S.C. § 1028(b)(2).
Next, he challenges the propriety of the weight that the district court
gave to his 2004 “nearly two-decades-old” drug offense 3 in deciding to
impose an above-Guidelines sentence for the § 922(g)(1) firearm offense.
Specifically, he argues that the “court’s statements focused on its concerns
about the severity of the prior offense, for which [he] already punished, and
assumptions about that conduct based on his immigration status.”
Lastly, Cortez-Balderas contends that the district judge’s references
to his immigration status during the sentencing hearing indicate that he
improperly considered that status in deciding the § 922(g)(1) above-
Guidelines sentence.
The district court did not abuse its discretion in considering the
substantial and ongoing harms suffered by the victim of the identity theft
offense, and/or Cortez-Balderas’ 2004 marijuana importation offense, in
determining the appropriate sentence for the § 922(g)(1) firearm possession
offense. In this instance, both unquestionably are relevant to § 3553(a)
factors that district courts are directed to consider in determining an
appropriate sentence, i.e., the history and characteristics of the defendant,
and the need for the sentence to reflect the seriousness of the offense,
promote respect for the law, provide just punishment, afford adequate
deterrence to criminal conduct, and protect the public from other crimes of
the defendant. And, when the Sentencing Guidelines and resulting range of
imprisonment do not adequately account for such information, district courts
_____________________
3
The 2004 drug offense is the predicate felony conviction for the 18 U.S.C.
§ 922(g)(1) violation (prohibiting possession of a firearm by a person convicted of a crime
punishable by a term of imprisonment exceeding one year).
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have discretion to impose a non-Guidelines sentence that does. The record
clearly reflects that the district court so did here. 4
Indeed, in arguing his position, Cortez-Balderas seemingly concedes
that the 2004 drug offense has some relevance to the court’s determination of
his sentence, given that points for the offense would have been included in
the calculation of his criminal history category but for its age. Even so, he
maintains that its sentencing significance vis-à-vis an upward variance is
_____________________
4
The district court’s oral and written statements identify § 3553(a) factors as
reasons for the upward-varying non-Guidelines sentences that were chosen for Cortez-
Balderas’ offenses. The transcript of the May 17, 2022 sentencing hearing reflects that the
district judge, in discussing the § 3553(a) factors, highlighted: (1) Cortez-Balderas’
continuing misuse of Mr. Pineda’s identity “for at least 20 years” and that he was “still
abusing it in 2019”; (2) the seriousness of the offenses: that Cortez-Balderas may not have
realized small consequences but definitely did when “smuggling drugs into the country”;
(3) history and characteristics: Cortez-Balderas “abused [Mr. Pineda’s] identity for 17
years,” and imported drugs for which he was convicted under Mr. Pineda’s name;
(4) promote respect for law and provide just punishment: that it is “hard to believe” that
Cortez-Balderas now “respects the law” and has “learned his lesson” because even after
he was “busted for kilos of marijuana,” he “continued to use [Mr. Pineda’s] identity
getting traffic attachments”; (5) deter future crime and protect the public: the district
judge “hears all the time” that a defendant will “never do it again” whereas Cortez-
Balderas had been “abusing” Mr. Pineda for 17 years. The district judge also indicated
that he would vary upward in sentencing for the firearm offense (even if had not been joined
with the identity theft) given the fact of the prior drug charge; specifically, that Cortez-
Balderas “deserves” the statutory maximum sentence—10 years—for the firearm offense
given the prior drug offense (“infecting our citizens with 24.3 kilos of marijuana”) and his
decision to have a gun (despite knowing of legal prohibition), but instead was sentenced to
7 years because of his children.
The May 23, 2022 written “Statement of Reasons” similarly designates as reasons:
“History and Characteristics of the Defendant”; “Issues with Criminal History”
(specifying “Identity theft of real person spanning 17 years; serious prior offenses”); “To
afford adequate deterrence to criminal conduct”; and “To protect the public from further
crimes of the defendant.” The section of the document providing space to “state the basis
for a variance” additionally reports: “The victim, whose identity was stolen, suffered an
ongoing ordeal which impacted his criminal and financial record, as well as his ability to
obtain a driver’s license.”
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similarly limited, reasoning that including criminal points for the drug offense
would add only a few months’ imprisonment to his resulting Guidelines
range. 5 Thus, he contends, consideration of his 2004 drug conviction
justifies, at most, only a very small upward variance, not the 72 months’
imprisonment imposed here.
Cortez-Balderas fails to fully appreciate the gravity of his criminal
history, which clearly supports the district court’s assessment of the §
3553(a) factors and decision to impose the 72-months non-Guidelines
sentence. Specifically, because Cortez-Balderas, a Mexican national, lacked
legal immigration status after entering the United States, in the late 1980’s,
using a U.S. Border Crossing Card and then overstaying his authority, he
purchased the birth certificate of an American citizen of comparable age, Joe
Daniel Pineda, 6 purportedly from a member of Mr. Pineda’s family. 7
_____________________
5
Because the sentence for the 2004 drug offense conviction was not imposed
during the requisite number of years preceding the instant identity theft and firearm
offenses, no criminal history points for it were included in the score that determined
Cortez-Balderas’ criminal history category. See U.S.S.G. §§ 4A1.1(b), 4A.1.2(e). After the
district court granted his objections to the probation officer’s initial calculations, which did
include the 2004 offense, Cortez-Balderas’ resulting criminal history score was 3, yielding
a criminal history category of II. With a total offense level of 13 and a criminal history
category of II, the resulting Guidelines range was 15-21 months’ imprisonment.
Had he received two additional criminal history points for the 2004 conviction,
Cortez-Balderas’ criminal history score would have been 5, yielding a criminal history
category of III. With a total offense level of 13 and a criminal history category of III, the
resulting Guidelines range would have been 18-24 months’ imprisonment.
6
Cortez-Balderas was born in 1982. According to the factual basis signed by
Cortez-Balderas and counsel for the Government, the state identification card bearing
another person’s name that was found in Cortez-Balderas’ residence reflected a 1980 date
of birth.
7
Cortez-Balderas began residing entirely in the United States at the age of 14, and
attended high school in McAllen, Texas, until leaving school in 11th grade to work. Mr.
Pineda’s birth certificate was purchased at some point during Cortez-Balderas’ teen-age
years. In 2005, Cortez-Balderas moved to New Orleans.
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Thereafter, for approximately twenty years, Cortez-Balderas assumed Mr.
Pineda’s identity, including his name and variations thereof, his date of birth,
and his social security number, until his November 9, 2020 arrest revealed
Cortez-Balderas’ true identity to law enforcement officers. Had Cortez-
Balderas lived a law-abiding life and timely satisfied credit obligations
following his assumption of Mr. Pineda’s identity, the consequences to Mr.
Pineda during the ensuing years might have been relatively minor.
Unfortunately, however, he did not.
Rather, the record shows that, in 2004, when Cortez-Balderas
imported 24.3 kilograms of marijuana into the United States and was arrested
at the border, he maintained his false identity such that he, as “Jose Daniel
Pineda,” not “Martin Cortez-Balderas,” was convicted of a federal drug
crime and sentenced to terms of imprisonment and supervised release.
Notably, though Cortez-Balderas could have confessed his true identity at
any time during that legal proceeding, while he was in prison, or during his
years of supervised release, he did not, thereby avoiding the possibility of
being charged with an immigration offense and/or deported. 8 Thus, upon
completing his term of imprisonment, Cortez-Balderas, still masquerading as
“Joe Daniel Pineda,” was able to continue to live and work in the United
States.
However, even after serving his sentence for the 2004 drug offense,
Cortez-Balderas still did not choose to live “Joe Pineda’s” life “on the
straight and narrow.” Instead, he renewed his state identification cards—as
Joe Pineda—in March 2010, August 2013, and April 2018, using them as
_____________________
8
To the contrary, he went so far as to request documentation from his probation
officer, in 2009, reflecting that his “true” name was “Joe Daniel Pineda,” as listed in “his”
birth certificate, rather than “Jose Daniel Pineda,” as it had appeared in the presentence
report for his 2004 drug offense conviction.
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needed.. The last card—renewed in April 2018—remained in Cortez-
Balderas’ possession as of his November 9, 2020 arrest for unlawful
possession of a firearm. During these interim years, Cortez-Balderas also
incurred substantial unsatisfied debt, and engaged in conduct resulting in
misdemeanor convictions for traffic violations (including driving while
intoxicated), unauthorized use of a movable, simple criminal damage to
property, domestic battery, and violation of a protective order—all in some
version of the name “Joe Daniel Pineda.” Finally, at some time prior to his
November 9, 2020 arrest, despite knowing he was legally prohibited from
possessing a firearm and thus should consider other safety measures, Cortez-
Balderas obtained a pistol to keep in his car for protection. He did so,
moreover, while still having a state identification card in Mr. Pineda’s name.
At Cortez-Balderas’ sentencing hearing, Mr. Pineda detailed the
devastating impact that Cortez-Balderas’ actions, all taken in some form of
Mr. Pineda’s name, had had on his quality of life, mental health, employment
opportunities, and credit rating. He recounted approximately twenty years
of trying to “clear” his name and credit—repeatedly having to respond to
bench warrants, deal with bill collectors, and suffer detention by law
enforcement officers—because of the criminal and financial records that
Cortez-Balderas had amassed in Mr. Pineda’s name. In connection with the
2004 drug offense conviction, officers of the United States Marshal’s Service
came to Mr. Pineda’s house in “full gear” to detain him. He also described
being pulled from a college classroom, escorted through campus in
handcuffs, and detained in a cell for hours until the Marshal’s Service
confirmed his actual identity. He likewise was detained when border patrol
officers checked bus passengers’ identification cards. According to Mr.
Pineda, “[his] twenties were taken from [him].” And, because of his ongoing
fear of arrest or detention, engendered by his numerous encounters with law
enforcement and the judicial system that resulted from Cortez-Balderas’
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simultaneous use and abuse of his identity, Mr. Pineda forewent getting a
driver’s license until he was 41 years old.
Notably, at various points during his sentencing hearing, Cortez-
Balderas apologized to Mr. Pineda for the harm that his actions had caused,
acknowledging his role in causing that harm and offering to do what he could
to “clean” Mr. Pineda’s name. He also told Mr. Pineda that he had not
intended to hurt him, and indicated that he had not realized the hardship that
his actions had caused Mr. Pineda.
While the record reflects that the district judge believed that Cortez-
Balderas truly was unaware of the full extent of the substantial hardships that
his actions had had on almost twenty years of Mr. Pineda’s life, it likewise is
evident that the court reasonably concluded that Cortez-Balderas could not
have been entirely ignorant of the considerable risk of collateral damage
associated with his conduct. This is particularly true after Cortez-Balderas
began accruing criminal convictions and unsatisfied financial obligations, all
in Mr. Pineda’s name, given the absence of any evidence that Cortez-
Balderas did not know that the identity he had assumed belonged to a real,
living person. Indeed, though Cortez-Balderas asserts that his having
purchased Mr. Pineda’s birth certificate from a member of Mr. Pineda’s
family gave “him no reason to think the owner would be harmed,” the
opposite inference is equally likely.
Viewed in its entirety, his conduct reveals ongoing and conscious
disrespect for the law and the rights of others, worsened by a disregard for
the foreseeable negative consequences that his actions have had on others.
Unsurprisingly, as revealed by its oral and written reasons, these factors
significantly impacted the sentences selected by the district court. The
district court’s consideration and weighing of such egregious factual history
was proper. To turn a blind eye to such persistent disrespect for the law and
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the rights of others would be inconceivable. Likewise, the per curiam
opinion’s omission of these record facts compels me to concur with these
additional reasons. Thus, on this record, I agree that Cortez-Balderas’
objections to the weight that the district court gave the identity theft
offense’s victim impact and the circumstances of his 2004 drug offense, in
deciding to impose an above-Guidelines sentence for the § 922(g)(1) firearm
offense, are unavailing.
The district court’s few references to Cortez-Balderas’ lack of legal
immigration status do not reveal an abuse of sentencing discretion. Although
Cortez-Balderas’ immigration status was mentioned at some points of the
sentencing hearing, nothing in the record suggests that the district court gave
it undue weight. Furthermore, Cortez-Balderas proffered that status as a
basis to explain and mitigate his unlawful conduct. That is, during the
sentencing hearing, Cortez-Balderas told Mr. Pineda: “I wish I was born in
this country and [] didn’t having to do what I did.” He explained that he was
“using [Mr. Pineda’s] name” . . . “just to work because [he] wasn’t born in
this country” and “it got out of [his] hands” [in speaking of arrests in
Pineda’s name]. In any event, the district court’s remarks, for the most part,
simply emphasized Cortez-Balderas’ decisions, whilst living in the United
States, to repeatedly engage in unlawful activity that harmed others, rather
than endeavoring to live, as much as possible, within the confines of the law.
Balancing the § 3553(a) Sentencing Factors
Finally, Cortez-Balderas contends that the district court made a clear
error of judgment in balancing the § 3553(a) sentencing factors, given that his
§ 922(g)(1) firearm offense lacked any aggravating factors, and that he had
obtained a gun to protect himself, not to facilitate a crime. He also
emphasizes that, given his total offense level of 13, utilizing the highest
possible criminal history category of VI yields a Guidelines range of only 33–
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41 months’ imprisonment, i.e., approximately half of the 72 months’
imprisonment to which he was sentenced.
This assertion of error is likewise not persuasive. The record shows
that Cortez-Balderas was able to fully present all of his sentencing arguments,
objections, and requests to the district court, that the district court
considered them, and that the district court had a reasonable basis for
rejecting them. Thus, he essentially asks that we reweigh the § 3553(a)
factors in his favor, thereby substituting this court’s judgment in place of the
district court’s. This, we cannot do. See, e.g., Gall, 552 U.S. at 51 (“fact the
appellate court might reasonably have concluded that a different sentence
was appropriate is insufficient to justify reversal of the district court”); see
also United States v. Hernandez, 876 F.3d 161, 167 (5th Cir. 2017) (refusing to
reweigh sentencing factors and substitute appellate court’s judgment for that
of the district court); United States v. Gutierrez, 635 F.3d 148, 154 (5th Cir.
2011) (deference is owed to the district court’s determination of the
appropriate sentence based on the § 3553(a) factors).
III.
For these additional reasons, I concur in the per curiam opinion.
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