IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-20797

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

MILTON ALBERTO RIASCOS TOVAR,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:18-CR-364-1

Before KING, GRAVES, and WILLETT, Circuit Judges.

PER CURIAM:*

Milton Alberto Riascos Tovar (Riascos Tovar) appeals the 54-month, 

above-guidelines sentence imposed following his guilty plea to illegal reentry 

by a previously deported alien after a felony conviction. He argues that the 

sentence was substantively unreasonable because it was greater than 

necessary to achieve the sentencing goals of 18 U.S.C. § 3553(a). 

 

* 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

October 29, 2019

Lyle W. Cayce

Clerk

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2

Riascos Tovar first asserts that the district court gave significant weight 

to an improper factor and violated his Fifth Amendment right against selfincrimination when it sentenced him above the guidelines range based on his 

refusal to disclose certain information to the probation officer during the 

presentence interview. Specifically, he argues that the district court drew an 

adverse inference at sentencing based on his failure to disclose when and 

where he last entered the United States, whether he had a history of substance 

abuse, and his dates of employment. Because Riascos Tovar did not object on 

this basis in the district court, we review this argument for plain error. See 

United States v. Ronquillo, 508 F.3d 744, 748 (5th Cir. 2007). 

In Mitchell v. United States, 526 U.S. 314, 330 (1999), on which Riascos 

Tovar relies, the Supreme Court held that a sentencing court may not draw an 

adverse inference from a defendant’s silence “in determining the facts of the 

offense” because to do so “impose[s] an impermissible burden on the exercise 

of the constitutional right against compelled self-incrimination.” But Mitchell 

is inapplicable here because Riascos Tovar admitted the facts of his illegal 

reentry offense, and none of the predicate facts were disputed at sentencing. 

See Ronquillo, 508 F.3d at 749. Thus, the district court did not draw an 

adverse inference in determining the facts of Riascos Tovar’s offense. See id. 

Further, the district court explained that the failure to disclose the information 

was relevant to Riascos Tovar’s history and characteristics, namely, his 

deceitful nature, a proper factor under § 3553(a)(1). Accordingly, Riascos 

Tovar cannot establish error, plain or otherwise. See id. at 749, 752-53.

Next, Riascos Tovar asserts that the above-guidelines sentence 

represents a clear error of judgment in balancing the sentencing factors 

because the district court gave undue weight to his criminal history and 

insufficient weight to the guidelines range. Because Riascos Tovar preserved 

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this issue through his objection at sentencing, we review for abuse of discretion 

under the totality of the circumstances. See Gall v. United States, 552 U.S. 38, 

51 (2007). The record reflects that the district court properly considered the 

§ 3553(a) factors. Specifically, the district court noted that Riascos Tovar had 

a history of deceit based on his repeated use of aliases and false birth dates;

that his prior convictions for burglary, theft, and drug trafficking involved 

significant sums of money and expensive items; and that his criminal history 

was understated because he was not prosecuted for a 2007 illegal reentry. The 

district court emphasized that Riascos Tovar reentered illegally shortly after a 

prior deportation and that he had engaged in illegal activity in this country for 

almost two decades. Based on all this, the court opined that an aboveguidelines sentence was warranted. Under the totality of the circumstances, 

the 54-month sentence was reasonable. See United States v. Brantley, 537 F.3d 

347, 349 (5th Cir. 2008). Further, we have upheld similar upward variances. 

See id. at 348-50; United States v. Lopez-Velasquez, 526 F.3d 804, 805, 807 (5th 

Cir. 2008); United States v. Smith, 417 F.3d 483, 492-93 (5th Cir. 2005).

 AFFIRMED. 

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