IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-10209

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JAIME IVAN GRIMALDO-CRUZ,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:15-CR-213-1

Before KING, GRAVES, and COSTA, Circuit Judges.

PER CURIAM:*

Jaime Ivan Grimaldo-Cruz appeals the 24-month above-guidelines 

sentence imposed in connection with his conviction for illegal reentry after 

deportation. Grimaldo-Cruz challenges the substantive reasonableness of his 

sentence. He contends that the court based its reason for the variance on 

inaccurate information. Specifically, Grimaldo-Cruz asserts that the record 

showed he was not deported on two occasions; rather, he was allowed voluntary 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

November 17, 2016

Lyle W. Cayce

Clerk

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No. 16-10209

2

departure on one occasion and was deported once. He also disputes the 

assertion in the Presentence Report (PSR) that he had three illegal entries into 

the United States. We need not resolve the question on the standard of review 

because, as discussed below, Grimaldo-Cruz’s argument fails under any 

standard. See United States v. Rodriguez, 523 F.3d 519, 525-26 & n.1 (5th Cir. 

2008).

In reviewing a non-guidelines sentence for substantive reasonableness, 

we consider “the totality of the circumstances, including the extent of any 

variance from the Guidelines range, to determine whether as a matter of 

substance, the sentencing factors in section 18 U.S.C. 3553(a) support the 

sentence.” United States v. Gerezano-Rosales, 692 F.3d 393, 400 (5th Cir. 2012) 

(internal quotation marks and citation omitted). Though the PSR stated that 

Grimaldo-Cruz had illegally entered the United States “at least three times,” 

the PSR did not state that those entries resulted in convictions. He does not 

dispute that he was in the country illegally before his voluntary departure. 

Grimaldo-Cruz was granted voluntary departure by an immigration judge in

November 2011. He unlawfully reentered in January 2015 and was ordered 

removed by an immigration judge in March 2015. In connection with the 

instant conviction, Grimaldo-Cruz admitted to illegally reentering the United 

States after his March 2015 deportation. Thus, Grimaldo-Cruz fails to show 

that the information regarding the number of his illegal entries is inaccurate. 

See United States v. Alaniz, 726 F.3d 586, 619 (5th Cir. 2013).

Grimaldo-Cruz left this country on two occasions after being placed in 

deportation proceedings. Though he was granted voluntary departure on one 

occasion and was ordered removed on the other occasion, both departures 

resulted after deportation proceedings commenced. The court’s statement

regarding Grimaldo-Cruz’s removals indicated that it was concerned with 

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No. 16-10209

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Grimaldo-Cruz continuing to enter the country illegally. In imposing the 

above-guidelines sentence, the court also expressed concern with GrimaldoCruz’s membership in a criminal gang. Under the totality of the 

circumstances, including the significant deference that is given to the district 

court’s consideration of the § 3553(a) factors and the district court’s reasons for 

its sentencing decision, Grimaldo-Cruz fails to show that his 24-month 

sentence is substantively unreasonable. See Gerezano-Rosales, 692 F.3d at 

400-01.

The judgment of the district court is AFFIRMED.

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