United States v. Pavon-Rivera

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 4, 2023
• Docket: 23-10069
• Status: Unpublished

Opinion

Case: 23-10069 Document: 00516919321 Page: 1 Date Filed: 10/04/2023

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit

No. 23-10069 FILED Summary Calendar October 4, 2023 ____________ Lyle W. Cayce Clerk United States of America,

Plaintiff—Appellee,

versus

Jose Eugenio Pavon-Rivera,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Northern District of Texas USDC No. 5:22-CR-59-1 ______________________________

Before Jones, Southwick, and Ho, Circuit Judges. Per Curiam: * Jose Eugenio Pavon-Rivera appeals his 48-month sentence for illegal reentry. Although the advisory guidelines range was 8 to 14 months of imprisonment, the district court applied an upward variance to 48 months of

_____________________ * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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: 23-10069 Document: 00516919321 Page: 2 Date Filed: 10/04/2023

No. 23-10069

imprisonment. Pavon-Rivera challenges the substantive reasonableness of his sentence. Pavon-Rivera contends that his sentence is substantively unreasonable because it demonstrates that the district court clearly erred in its balancing of the sentencing factors considering Pavon-Rivera’s history and characteristics. Because Pavon-Rivera properly preserved his challenge to the reasonableness of his sentence, we review for an abuse of discretion. See United States v. Burney, 992 F.3d 398, 399-400 (5th Cir. 2021). In imposing a non-guidelines sentence, a district court may consider factors already taken into account by the Sentencing Guidelines, including a defendant’s criminal history. United States v. Brantley, 537 F.3d 347, 350 (5th Cir. 2008). Our review of the record does not reveal that the district court gave significant weight to an irrelevant or improper factor or otherwise abused its discretion by failing to account for a factor that should have received significant weight or committing a clear error of judgment in balancing the § 3553(a) factors. See Burney, 992 F.3d at 400. Moreover, as to the extent of the variance, this court has upheld proportionately similar upward variances. See, e.g., United States v. Jones, 444 F.3d 430, 433, 441-43 (5th Cir. 2006). Pavon-Rivera also argues that 8 U.S.C. § 1326(b) is unconstitutional because it permits a sentence above the otherwise applicable statutory maximum based on facts that were not alleged in the indictment or found by a jury beyond a reasonable doubt. As Pavon-Rivera concedes, his argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998). See United States v. Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019). Accordingly, the judgment of the district court is AFFIRMED.