### REV ISED S epte mber 11 , 2019
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 18

- 50115

SEALED APPELLEE , Plaintiff

–

Appellee ,

versus SEALED APPELLANT , Defendant

– Appellant

.

Appeal from the United States District Court for the Western District of Texas

Before SMITH , WIENER , and ELROD , Circuit Judges

. JERRY E. SMITH, Circuit Judge : Appellant appeals his sentence, challenging two special conditions an d the substantive rea sonableness of the sen tence. We affirm as modified. United States Court of Appeals Fifth Circuit 

### FILED July 30 , 2019 Lyle W. Cayce ClerkNo. 18

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2 I. Appellant pleaded guilty of conspiring to possess with intent to distrib

ute 500 grams or more of cocaine. The presentence investigation report (“PSR”) calculated the total offense level as 31 and App ellant ’s criminal history cate

gory as IV. That criminal history included convictions of sexual assault on a child and attempted sexual assault on a child. 1 The PSR recommended special conditions of supervised release, includ

ing these: a) The defendant shal l participate in a sex offense

- specific assess

ment. The defendant shall pay the costs of the program if finan

cially able. The defendant is required to register as a Sex Offender. A sex offense

- specific assessment is recommended to determine if the defendant is still a danger to the community. b) The defendant shall participate in a sex offense

- specific treatment program and submit to periodic polygraph testing at the discretion of the probation officer as a means to ensure compliance with the requireme nts of supervision or the treatment program. The defen

dant shall follow the rules and regulations of the program. The pro bation officer will supervise the defendant’s participation in the program (provider, location, modality, duration, intensity , etc ). The defendant shall pay the costs of the program if financially able. The defendant is required to register as a Sex Offender. Should the sex offense

- specific assessment determine the defendant is still a danger to the community, the defendant shall p articipate in a sex offense

- specific treatment program as described in the condition. The government mo v ed for a three

- level downward departure under

1 Appell ant sexually assaulted three girls from about January 1, 1990, to January 31, 1995. The last time he sexually assaulted them, the girls were 19, 17, and 15 years old. One stated that Appellant had begun sexually abusing her when she was 6 and told “her t hat if she told anyone there would be no one to provide for her family.” Two of the girls reported that Appellant “would repeatedly put his penis in their vaginas,” while the third girl “indi

cated he put his finger in her vagina.”No. 18

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3 U.S.S.G. § 5K1.1 based on Appellant ’s having provided substantial assistance ; the government stated that i t would not oppose a three

- level down ward vari

ance in light of Appellant ’s age and medical conditions. The district court granted the § 5K1.1 motion.

II. T he district court granted Appellant ’s objection to a two

- point criminal history score increase under § 4A1.1(d) and implicitly granted his request for a three

- level downward variance. Based on a total offense level of 25 and a criminal history category of III, the court calculated a guideline range of 70 to 87 months’ imprisonment and sentenced Appellant to 72 months ’ incar

cer ation and 5 years’ supervised release. The court imposed, among others, the following special condi tions of
super vised release: You will be ordered to participate in a sex offense specific assessment. You will be ordered to pay the costs of that program if you are financially capable of doing so. You will be responsible for some, all or none of the costs depending upon circumstances. You will be ordered to register as a sex offender, a sex specific

-- sex offense specific asses sment is recom

mended to determine if you are still a danger to the community. Additionally, you will be ordered to participate in a sex offense specific treatment program and submit to periodic polygraph testing. You’re to follow the rules and regulatio ns of that program. I am ordering the probation office to supervise the Defendant’s participation in the program as it relates to the provider, location, modality, duration, intensity. And, again, the costs will be income dependent. Appellant objected to the special condition requiring him to register as a sex offender but did not object to the assessment or treatment conditions. The court overruled the objection. The written judgment’s formulation of the special conditions differedNo. 18

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4 from that of the oral pronouncement: The defendant shall participate in a sex offense

- specific assessment. The defendant must pay the costs of the program if financially able. The defendant shall participate in a sex offense

- specific treatment pro

gram and submit to periodic polygraph testing at the discretion of the probation officer as a means to ensure compliance with the requirements of supervision or the treatment program. The defendant shall follow the rules and regulations of the program. The probation officer will su per vise the defendant’s participation in the program (provider, location, modality, duration, intensity, etc.). The defendant shall pay the costs of the program if financially able. The defendant is required to register as a Sex Offender. A sex - offense specific assessment is recommended to determine if the defendant is still a danger to the community. Should the sex

- offense

- specific assessment determine that the defendant is still a danger to the community, the defendant shall participate in a sex offense

- specific treatment program as described in the condition. On appeal, Appellant challenges (1) the assessment and treatment con

ditions and (2) the substantive reasonableness of the sentence. First, he as

serts that the district court plainly erred in imposing the contested special conditions because they are not reasonably related to his history and char ac teristics, they impose a greater deprivation of liberty than is reasonably neces

sary to advance deterrence, protect the public fr om h i m, and advance his cor

rection al needs, and the error affect s his substantial rights. He further main

tains that the court impermissibly delegated judicial authority by making the treatment condition contingent on whether the assessing therapist deem s him a danger to the community. Second, Appellant contends that his sentence is substantively unreasonable because it is greater than necessary to accom plish the goals of 18 U.S.C. § 3553(a).

III. Appellant challenges the treatment condition, which was stat ed differ

ently in the oral pronouncement and the written judgment. Though the courtNo. 18

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5 stated during the oral pronouncement that Appellant “will be ordered to parti

ci pate in a sex offense specific treatment program,” the written judgment stated both that Appellant “shall participate in a sex offense

- specific treatment program” and that he “ shall participate in a sex offense

- specific treatment pro

gram as described in the condition” “[s]hould the [recommended] sex

- offense

specific assessment determine that [he] is still a danger to the community.” Appellant contends that the treatment condition “is an impermissible delegation of judicial authority, as the therapist providing the assessment ulti

mately determines whether [he] is a danger to the community and thus decides whether [he] must participate in a sex offender treatment program.” Appellant asserts that the condition is contingent on the results of a sex

- offense specific assessment, thereby implicitly averring that the second prong 2 of the condition

a s stated in the written judgment controls and that the condition is uncon sti

tutional. The government responds that the oral pro nounce ment and written judgment, read together, “mandate” Appellant ’s par ti cipa tion in a treatment program, thus implicit ly asserting that the first prong 3 of the written judgment treatment condition controls. B efore squarely address ing the impermissible

delegation challenge, this court , in order cor rectly to interpret the proper scope of the condition, must resolve the dis crep ancy between the treatment condition in the oral pronouncement and in the written judgment.

A. “The imposition of a sentence, including the terms and conditions of

2 “Should the [recommen ded] sex - offense

- specific assessment determine that the defen dant is still a danger to the community, the defendant shall participate in a sex offense

specific treatment program as described in the condition.”

3 “The defendant shall participate in a sex o ffense

- specific treatment program and sub mit to periodic polygraph testing at the discretion of the probation officer as a means to ensure compliance with the requirements of supervision or the treatment program.”No. 18

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6 supervised release, is a core judicial function that cannot be delegated. ” United States v. Franklin , 838 F.3d 564, 568 (5th Cir. 2016) (internal quotation marks and citation omitted). Though “a district court may properly delegate to a pro

bation officer decisions as to the details of a condition of supervised release,” it

m ay not delegate “authority to decide whether a defendant will participate in a treatment program.” United States v. Lomas , 643 F. App’x 319, 324 (5th Cir. 2016) (per curiam) (internal quotation marks and citations omitted). Appellant challenges the treat ment condition as an improper delegation of judicial au

thor ity. That challenge, however, is intertwined with the discrep ancy be tween the treatment condition in the oral pronouncement and written judg ment, an issue we must resolve first.
“In addressin g discrepancies between the oral pronouncement and the written judgment, the key determination is whether the discrepancy between the two is a conflict or merely an ambiguity that can be resolved by reviewing the rest of the record.” United States v. Flor es , 664 F. App’x 395, 398 (5th Cir. 2016) (per curiam) ( cleaned up and citation omitted). A conflict exists where “the written judgment broadens the restrictions or requirements of supervised release from an oral pronouncement,” United States v. Mireles , 471 F.3d 551, 558 (5th Cir. 2006), or “impos[es] a more burdensome requirement,” United States v. Bigelow , 462 F.3d 378, 383 (5th Cir. 2006). 4 “If, however, we deter

mine that the discrepancy between the two is merely an ambiguity, we exam

ine the entire record to determine the sentencing court’s intent in imposing the condition.” Flores , 664 F. App’x at 397

– 98; see also United States v. Tang , 718 F.3d 476, 487 (5th Cir. 2013) (per curiam).

4 See also Flores , 664 F. App’x at 398 (collecting cases where this court found a conflict instead of a “mere ambiguity”).No. 18

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7 B. The discrepancy between the oral pronouncement and the written j udgment is an ambiguity, not a conflict. The written judgment does not broaden the restrictions or requirements of the oral pronouncement or impose a more burdensome requirement. 5 Even accepting Appellant ’s contention that the written judgment renders th e treatment condition contingent instead of manda tory, the written judgment would “narrow” the oral pronouncement, not broaden it or impose a more burdensome require ment. Consequently, this court must “examine the entire record to determine the sentenci ng court’s intent in imposing the condition.” Flores , 664 F. App’x at 398.
A review of that entire record shows that the district court intended to mandate a sex

- offense specific assessment and a sex

- offense specific treatment
program , thereby obviating an inquiry of whether the treatment condition represent s an improper delegation of judicial authority. Our decision in United States v. Guerra , 856 F.3d 368 (5th Cir. 2017), is instructive. T he defendant challenged special conditions ordering h im “to participate in mental health and drug treatment programs ‘as deemed necessary and approved by the probation officer.’” Id. at 369. Based on the defendant ’s history of mental illness and sub stance abuse, as well as his counsel’s representations at sentencing regard

ing his “mental health issues,” the court concluded that “[c]learly

. . . the judge intended that treatment be mandatory and left only the details to the probation officer.” Id. at 369

– 70. We affirmed the special conditions after modif ying them to be mandatory , with the details left to the probation office “[l]est there be any doubt.” Id. at 370. Appellant ’s case is similar, and we adopt the same approach here.

5 Cf. Flores , id. (collecting cases in which this court “found a conflict, rather than a mere ambiguity, between the oral pronouncement and the written judgment”).No. 18

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8 Appellant was convicted of sexual assault on a child and attempted sexual assault on a child. He proffers no evidence that he has ever received sex

offender treatment , and it is uncertain whether he remains a danger to the community. 6 These factors patently support the imposition of special condi

tions mandating a sex

- offense specific assessment and participation in a sex

offender treatment program. Accordingly, we modify the written judgment as follows to remove any doubt regarding the scope of the special conditions and what they require of Appellant , leaving the other speci al conditions unchanged : The defendant is required to register as a Sex Offender. A sex

- offense specific assessment is recommended to determine if the defendant is still a danger to the community. Should the sex

- offense

- specific assessment determine that the defendant is still a danger to the community, the defendant shall participate in a sex offense

- specific treatment program as described in the condition. As modified, this special condition presents no constitutional infirmities. The special condition s together require Appellant to participate in a sex

offense specific assessment and a sex

- offense specific treatment program. Therefore, t he district court has not impermissibly delegated judicial authority to decide whether Appellant must participate in a treatment program.

IV. Turning to the merits, Appellant asserts that the district court plainly erred by imposing the assessment and treatment conditions. He fails to dem

onstrate error, let alone plain error. The court exercised its wide discretion in

6 Appellant underwent a psychiatric evaluation in 2000 while incarcerated for his sex

offense convictions, but the evaluation is not in the record, and neither party discusses its results.No. 18

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9 crafting the special conditions of super vised release, and contrary to Appel

lant ’s claims, those conditions satisfy the statutory requirements.

A. Appellant failed to object to the assessment and treatment special con

di tions after the district court had imposed them. This court reviews un

preserved challenges to special conditions for plain error. United States v. Weatherton , 567 F.3d 149, 152 (5th Cir. 2 009). “Relief under the plain

- error standard will be difficult to get, as it should be.” United States v. Figueroa

Coello , 920 F.3d 260, 264 (5th Cir. 2019) (per curiam) (internal quotation marks and citation omitted). “To establish plain error, [an a pp ellant ] must show (1) an error; (2) that was clear or obvious; and (3) that affected his substantial rights.” United States v. Reyes

- Ochoa , 861 F.3d 582, 585 (5th Cir. 2017). “This court then has discretion to correct the error if (4) it seriously affect s the fairness, integrity, or public reputation of judicial proceedings.” Figueroa

- Coello , 920 F.3d at 264. Because a district court may modify special conditions at any time, see 18 U.S.C. § 3583(e)(2), “a defendant faces an uphill battle” in demonstrat ing this last prong , United States v. Prieto , 801 F.3d 547, 554 (5th Cir. 2015) (per curiam). 7 “A district court has wide discretion in imposing terms and conditions of supervised release.” United States v. Winding , 817 F.3d 910, 914 (5th Cir. 2016) (cita tion omitted). Under 18 U.S.C. § 3583(d), t he “ court may impose any condition i t considers to be appropriate so long as the condition [(1)] is rea son a bly related to the factors set forth in Section 3553(a)(1), (a)(2)(B) [

– ] (D); [(2)] in volves no greater deprivation of liberty than is reasonably necessary for

7 See also United States v. Fields , 777 F.3d 799, 806 (5th Cir. 2015 ) (“[A] modifiable condition

. . . works a less significant deprivation of liberty than one which cannot be altered.”).No. 18

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10 the purposes set forth in those same sections; and [(3)] is consistent with the pertinent policy statements issued by the Sentencing Commission.” Id. at 914

– 15 (cleaned up and citat ion omitted). A court must state “the reasons for its imposition of the particular sen

tence.” 18 U.S.C. § 3553(c). Therefore, i t must articulate factual findings that justify the special conditions it imposes. United States v. Salazar , 743 F.3d 445, 45 1 (5th Cir. 2014). Nevertheless, this court may affirm where the district court’s reasoning can be inferred from the record. Id.

B. Appellant first urges this court to vacate both special conditions because the district court did not articulate factual fin dings justifying its imposition of those conditions. To the contrary, the court did so . After expressing concerns about Appel lant ’s “extensive criminal history” detailed in the PSR, the court

ex plained that it had “considered everything about this case , . . . adopted the findings in the [PSR],

. . . considered the circumstances of [ Appellant ] [and] the criminal history in which he presents” and thus was imposing special condi

tions, including the assessment and treatment conditions. Furthermore, in imp osing the special condition requiring Appellant to register as a sex offender, the court expressly stated that “some of [ Appellant ’s] prior convictions and conduct that is outlined in the [PSR]

. . . justified” the condition, implying that the court was in fact justifying the sex

- offense related special conditions based

on Appellant ’s previous sex

- offense convictions. Even if the district court’s reasoning was not fully adequate and did not sufficiently articulate factual findings justifying the special con ditions

— which we do not hold

— this court may affirm special conditions where the reasoning can be inferred from the record. Id . That is so here. Given the heinous natureNo. 18

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11 of Appellant ’s previous sex

- offense convictions, the lack of evidence demon

strating that he had ever received sex

- offender treatment, and the uncertainty regarding whether he remains a danger to the community, it is apparent from the record the reasoning underlying the court’s imposition of the assessment and treatment conditions.
But e v en assuming that the district court erred in not setting forth a factual basis justifying the two special conditions

— which, as explained above, is not the case

— Appellant fails to make the required showing to overcome the plain error standard of review. Un der that standard, Appellant must demon

strate that his sentence would have been different had the court given a factual explanation. See Tang , 718 F.3d at 483. He does not even attempt to make th at showing, devoting no portion of his initial or reply brief to explaining how his sentence would have been different had the court given an adequate factual basis for the assessment and treatment conditions. Therefore, Appellant fails to show plain error on this basis.

1. Appellant maintains that the assessment condition fails to satisfy the stat utory requirements because (1) he has not committed a sex offense since 1995, he already underwent a psychiatric evaluation in 2000, and he commit

ted no violations during his pretrial release, and therefore the condition is not reasonably related to at least one of the § 3553(a) factors, and (2) the condition imposes a greater deprivation of liberty than is reasonably necessary to ad

vance deterrence, protect the pu blic from him, and advance his correctional needs. Both contentions are unavailing, so Appellant cannot overcome the strict plain

- error standard of review. First, the assessment condition is reasonably related to at least one of the § 3553(a) factors, nam ely, “the nature and circumstances of the offense andNo. 18

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12 the history and characteristics of the defendant.” “ B ecause district courts must consider the defendant’s history and characteristics, they may take into ac

count a defendant’s prior conviction for a s ex offense when imposing sex

offender

- related special conditions when the underlying conviction is for a non

sexual offense.” Fields , 777 F.3d at 803 ( cleaned up and citation omitted). With this principle guiding its analysis, the court upheld a sex

- offe nder related special condition in circumstances where the defendant’s “single, remote sex

ual offense” “occurred many years before, and the conviction leading to the imposition of the special condition was non

- sexual in nature” because the de

fendant’s “pr ior conviction for sexual assault of a child

. . . d[id] bear some relationship to the special condition of limiting access to places frequented by children.” Id. at 803

– 04. 8
Like the defendant in Fields , Appellant was convicted of sexual offenses in the past, had not committed further sexual offenses since then, and had the assessment condition imposed after a conviction for a non

- sexual offense. Fur

thermore, the assessment condition does bear some relationship to his prior

con viction for sexual assaul t on a child because it will allow physicians prop

e rly to tailor rehabilitating sex

- offender treatment to his specific circum

stances. Therefore, the assessment condition is reasonably related to the § 3553(a) fac t or of “the nature and circumstances of the offense and the history and charac t er istics of the defendant.” Second, the assessment condition is not a greater deprivation of liberty than is reasonably necessary. “The appropriateness of the supervised release condition is a function of the severity of the offense history and the impact of the restriction.” Id. a t 806. The conduct underlying Appellant ’s sex

- offense

8 See also id. at 803 n.15 (collecting cases applying similar reasoning).No. 18

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13 convictions was heinous and justifies an assessment to determine whether he represents a present danger to the community. The impact of the condition is also not more than is reasonably necessary, esp ecially given the Supreme Court’s recognition that “probationers do not enjoy the absolute liberty to which every citizen is entitled,” United States v. Knights , 534 U.S. 112, 119 (2001) (internal quotation marks and citation omitted), a principle that thi s court has applied in the supervised release context, Winding , 817 F.3d at 916. Furthermore, the condition is modifiable and thus “works a less significant deprivation of liberty than one which cannot be altered.” Fields , 777 F.3d at 806. The assessmen t condition is not “too much of a burden on [ Appellant ’s] already reduced liberty interest in light of his prior criminal history,” and consequently Appellant ’s “deprivation of liberty is not more than is necessary.” Winding , 817 F.3d at 917. 2. Appellant a sserts that the treatment condition also fails to satisfy the statutory requirements because (1) it does not reasonably relate to one of the § 3553(a) factors, (2) it deprives his liberty more than is reasonably necessary to advance deterrence, protect the public from him, and advance his correc

tional needs, and (3) it is inconsistent with the Sentencing Commission’s policy statements. We address and reject each contention in turn. Appellant first maintains that the treatment condition is not reasonably

r elated to any of the § 3553(a) factors because (1) he has not committed a sex offense since 1995, (2) he did not violate his pretrial conditions of release, (3) his health is poor, and (4) the district court implicitly recognized that the treatment conditi on may be unnecessary because it recommended an assess ment to determine whether Appellant was still a danger to the community. This claim fails for similar reasons as to why it failed in the assessment

-No. 18

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14 condition context. The court properly considered Ap pellant ’s previous sexual offense convictions, despite the age of those convictions and the absence of fur

ther sexual offenses, and the treatment condition bears some relationship to those sexual offense convictions because it will enable physicians to im plement the necessary rehabilitating care. Thus, the condition is reasonably related to the § 3553(a) factor of “the nature and circumstances of the offense and the history and characteristics of the defendant.” Appellant second contends that the conditio n deprives hi m of liberty more than is reasonably necessary because it requires him to (1) comply with all program rules, (2) submit to polygraph testing, and (3) pay for the treat

ment if able. This claim also fails for similar reasons as to why it faile d in the assessment

- condition context. This court has previously upheld special con di

tions mandating sex

- offender treatment with similar requirements, 9 treat

ment reasonably relates to the significant severity of Appellant ’s offense his

tory that includ es convictions for sexual assault on a child and attempted sexual assault on a child, and the impact of the condition would not be unduly bur densome given Appellant ’s reduced liberty interests and prior criminal history. Thus, the treatment condition is not a greater deprivation of liberty than is reasonably necessary. Appellant third claims that the treatment condition is inconsistent with the Sentencing Commission’s policy statements because (1) “[t]he Commission only recommends sex offender treatment i f the instan t offense is a sex offense,” and (2) “[e]ven in that circumstance, the treatment does not require polygraph testing.” See U.S.S.G. § 5D1.3(d)(7). But “[a] district court has discretion to craft conditions of supervised release, even if the Guidelines do not recom mend

9 See, e.g. , United States v. Cuneo , 554 F. App’x 313 (5th Cir . 2014) (per curiam); United States v. Byrd , 551 F. App’x 726 (5th Cir. 2013) (per curiam).No. 18

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15 those conditions.” United States v. Windless , 719 F.3d 415, 421 (5th Cir. 2013). The guidelines also state that the special conditions that are specifically rec

ommended for certain offenses “may otherwise be appropriate in p articular cases.” U.S.S.G. § 5D1.3(d). Thus, § 5D1.3(d)(7) does not constrain a district court to impose sex

- offender treatment as a special condition only where the underlying conviction is for a sexual offense, nor does it prohibit a court from includi ng mandatory participation in polygraph testing as part of that treat

ment by the mere fact that polygraph testing is not mentioned in § 5D1.3(d)(7). Consequently, the treatment condition is consistent with the Sentencing Com mission’s policy statements. Accordingly, Appellant ’s claims fail because he cannot demonstrate that the imposition of the assessment and treatment conditions constituted error, let alone plain error.

V. Appellant contends that his sentence is “greater than necessary to meet the goals o f § 3553(a) and is therefore [substantively] unreasonable” for two reasons. First, the sentence “failed to adequately reflect his personal history and characteristics,” ignoring his cooperation with agents immediately after his arrest, his admission of pr evious drug trafficking activities, and his “hon

esty essentially doubl[ing] his advisory Guidelines range.” Second, the sen

tence was “greater than necessary to provide adequate deterrence or to protect the public” because it did not account for Appellan t ’s living “a law

- abiding life” between the time of his initial arrest and his indictment nor his declining health. Appellant thus asks this court to reweigh the § 3553(a)(2) sentencing factors and reach a different conclusion about the length of his term of imprisonment. Appellant fails to show that the district court erred, plain ly or other wise, in sentencing him to 72 months’ imprisonment.No. 18

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16 A. Appellant did not object to the reasonableness of the sentence. We review unpreserved claims regarding the substantive reasonableness of a sentence for plain error. United States v. Heard , 709 F.3d 413, 425 (5th Cir. 2013). This court’s review of substantive reasonableness “is highly deferential as the sentencing judge is in a superior position to find facts and judge their import under § 3553(a) with respect to a particular defendant.” United States v. Simpson , 796 F.3d 548, 557 (5th Cir. 2015) (internal quotation marks and citation omitted). “The fact that we might r easonably conclude that a different sentence was appropriate is insufficient to justify reversal of the district court.” Id. (internal quotation marks and citation omitted). “We presume sentences within or below the calculated guidelines range

are reasona ble.” Id. An a ppellant may rebut th at presumption of reasonable

ness by establishing that the sentence “(1) does not account for a factor that should have received significant weight, (2) gives significant weight to an irrel

evant or improper factor, or (3) represents a clear error of judgment in bal

ancing the sentencing factors.” Id. at 558 (citation omitted).

B. The district court considered the § 3553(a)(2) factors and determined that a sentence of 72 months was sufficient but not greater than necessar y, a result well within the court’s discretion. The court explained that it had “con

sidered everything about this case,

. . . adopted the findings in the [PSR],

. . . considered the circumstances of the Defendant, the criminal history in which he present s, [and] the circumstances of the crime” in determining the appropriate sentence. The court reiterated that it had con sidered Appellant ’s age, “medical challenges,” and “personal circumstances,” and further explainedNo. 18

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17 “that the sentence reflects the serio usness of the offense, promotes respect for the law, and provides a just punishment for the offense, consistent with the factors set forth in 18 U.S.C. § 3553(a)(2).” Faced with the district court’s measured, reasonable application of the sentencing factor s, Appellant merely quibbles with how those factors should have been weighed. Neverthel ess, this court must give high deference to the substantive reasonableness of a sentence and presumes that a below

guidelines sentence is reasonable. Appellant ’s “mere belief that the [ sentenc

ing] factors presented for the court’s consideration should ha ve been balanced differently is insufficient to disturb th[at] presumption.” United States v. Alvarado , 691 F.3d 592, 597 (5th Cir. 2012). 10 Appellant neither per suasively explains why this court should rebut that presumption nor shows how the court’s re asoning was clear or obvious error. Consequently, Appellant does not demonstrate error, plain or otherwise. The judgment of sentence is AFFIRMED as m odified

.

10 See also Gall v. United States , 552 U.S. 38, 51 (2007).