### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 15

- 30596 Summary Calendar

UNITED STATES OF AMERICA , Plaintiff

- Appellee

v. ESMIN ESPINOZA

- ERAZO , also known as Felix Manuel Serrano Robles,
Defendant

- Appellant

Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 2:14

- CR

- 231

- 1

Before WIENER, HIGGINSON, and COSTA, Circuit Judges

. STEPHEN A. HIGGINSON, Circuit Judge : * Esmin Espinoza

- Erazo , a Honduran national, pleaded guilty to illegal use of a social security number, in violation of 42 U.S.C. § 408(a)(7)(B)

. The presentence report (PSR) assigned Espinoza

- Erazo a total offense lev el of ten and a criminal history category of I, which yielded a guidelines range of six to twelve months. The PSR identified no factors that might warrant a departure or variance, although it stated that Espinoza

- Erazo “was previously subject to

* Pursuant to 5 TH C IR

. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED April 5, 2016 Lyle W. Cayce Clerk Case: 15-30596 Document: 00513452796 Page: 1 Date Filed: 04/05/2016No. 15

- 30596

2 an admini strative deportation” and suggested that he should be required to cooperate in any removal proceeding as a special condition of supervised release. At sentencing , the district court adopted the PSR without objection

. Espinoza

- Erazo asked for a sentence w ithin the guidelines range , and noted that his two co

- defendants had been sentenced to time served. The district court upwardly varied from the guidelines range and sentenced Espinoza

Erazo to a term of imprisonment of twenty

- seven months to be followed b y three years of supervised release. The district court also imposed a $2,500 fine and a special condition of supervised release requiring Espinoza

- Erazo , who was in the United States unlawfully, to cooperate in any future removal proceedings. On appeal, Espinoza

- Erazo challenges the substantive reasonableness of the sentence and fine imposed and the lawfulness of the coopera tion condition. Following United States v. Booker , 543 U.S. 220 (2005), we review sentences for reasonableness. United States v. Mondragon

- Santiago , 564 F.3d 357, 360 (5th Cir. 2009 )

. Reasonableness review is bifurcated; if a review of the sentence for procedural error reveals none or, as here, no claim of procedural error is asserted, the appellate court then determines whether th e sentence is substantively reasonable. Gall v. United States , 552 U.S. 38, 51 (2007). If error has been preserved, an appellate court reviewing for reasonableness “merely asks whether the trial court abused its discretion.” Rita v. United States , 551 U .S. 338, 351 (2007). Challenges to the conditions of supervised release are also reviewed for abuse of discretion. United States v. Duke , 788 F.3d 392, 398 (5th Cir. 2015); United States v. Ellis , 720 F.3d 220, 224 (5th Cir. 2013). Sentences within the properly calculated guidelines range are afforded a presumption of reasonableness, United States v. Pacheco

Alvarado , 782 F.3d 213, 221 (5th Cir. 2015), while sentences imposed outside of the properly calculated guidelines range are not, Gall , 552 U.S. at 51. Case: 15-30596 Document: 00513452796 Page: 2 Date Filed: 04/05/2016No. 15

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3 Substantive reasonableness is determined in light of the 18 U.S.C. § 3553(a) sentencing factors. Id. at 49

– 50

. Although Espinoza

- Erazo argues that the sentence imposed creates unwarranted sentencing disparities with his co

- defendants and fails to acc ord sufficient weight to the guidelines and § 3553(a) factors, t he record reflects otherwise. The district court did not abuse its discretion by considering Espinoza

- Erazo ’s uncharged immigration offense when assessing whether the guidelines range is suff icient in light of the § 3553(a) factors. See , e.g. , United States v. Zuniga

- Peralta , 442 F.3d 345, 347 (5th Cir. 2006). In addition, the within

- guidelines fine was conditioned on Espinoza

- Erazo being able to work in prison and being within the United States. T his court has upheld the imposition of similar fines. See Pacheco

- Alvarado , 782 F.3d at 216

– 17. T he district court did not fail to account for a factor that should h ave received significant weight, give weight to a n improper or irrelevant factor, or clearly err in balancing the § 3553(a) factors. See United States v. Smith , 440 F.3d 704, 709 (5th Cir. 2006). In addition, Espinoza

- Erazo , given his prior deportation, was not similarly situated to his co

- defendants

. Id

. W e defer to the district c ourt’ s determination that the § 3553(a) factors, on balance, justify the extent of the upward variance imposed. United States v. Chandler , 7 32 F.3d 434, 437

– 38 (5th Cir. 2013) (citing United States v. Broussard , 669 F.3d 537, 551 (5th Cir. 2012)). Turning to the cooperation condition, Espinoza

- Erazo challenged it in the district court only “to the extent that it impinges on his right to litigate any matter that he can or should in immigration [c] ourt.” “A district court has wide discretion in imposing terms and con ditions of supervised release.” United States v. Paul , 274 F.3d 155, 164 (5th Cir. 2001). However, the conditions must be “r easonably related to the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C ), and (a)(2)(D) ”; “involve [ ] no greater deprivation Case: 15-30596 Document: 00513452796 Page: 3 Date Filed: 04/05/2016No. 15

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4 of liberty than is reasonably necessary for the purposes set forth in section 3553(a)(2)(B), (a)(2)(C), and (a)(2)(D) ”; and be consistent with the policy statements issued by the Sentencing Commission. 18 U.S.C. § 3583(d)

. Although the cooperation condition conceivably could be construed in a manner that would limit Espinoza

- Erazo’s rights and defenses in removal proceedings, it may also be co nstrued to require only that he “not evade removal proceedings and that he comply with the result , not that he waive any defenses he might have in that hearing .” United States v. Qu , 618 F. App’x 777, 781 (5th Cir. 2015). To the extent the condition could be interpreted to impinge Espinoza

- Erazo’s right to litigate in immigration court and involve a greater deprivation of liberty th an is reasonably necessary , it is within the authority of this court to interpret the conditions to exclude such an interference

. See Paul , 274 F.3d at 166

. Construed in that way , Espinoza

Erazo has not shown that the district court abused its discretion. Any remaining arguments unrelated to the argument that the cooperation condition limits his rights and defenses are subject to plain error review because they were not specificall y raised below. United States v. Wooley , 740 F.3d 359, 367 (5th Cir. 2014); United States v. Kippers , 685 F.3d 491, 497 (5th Cir. 2012). Here, Espinoza

- Erazo cannot establish clear or obvious error given the absence of any authority to support his argume nt s . See Qu , 618 F. A pp’x at 781. AFFIRMED. Case: 15-30596 Document: 00513452796 Page: 4 Date Filed: 04/05/2016