United States Court of Appeals

for the Fifth Circuit

No. 22-50108

Summary Calendar

United States of America, 

Plaintiff—Appellee,

versus

Marcos Andres Briceno-Romero, 

Defendant—Appellant.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:20-CR-1515-3

Before Wiener, Elrod, and Engelhardt, Circuit Judges.

Per Curiam:*

Marcos Andres Briceno-Romero appeals the sentence imposed 

following his guilty plea conviction for conspiracy to commit fraud in 

connection with access devices (Count One), conspiracy to commit mail 

fraud (Count Two), aiding and abetting the use of unauthorized access 

* 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opinion should not be published and is not precedent except under the limited 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.

United States Court of Appeals

Fifth Circuit

FILED

November 23, 2022

Lyle W. Cayce

Clerk

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No. 22-50108

2

devices (Count Three), aiding and abetting the possession with intent to use 

five or more identification documents (Count Four), and aiding and abetting 

aggravated identity theft (Counts Five, Six, and Seven). The district court 

sentenced Briceno-Romero to concurrent 41-month terms of imprisonment 

on Counts One through Four and 24-month terms of imprisonment on 

Counts Five through Seven, to run consecutively to each other and all other 

counts, for a total of 113 months of imprisonment.

Briceno-Romero challenges the procedural reasonableness of his 

consecutive sentences for his aggravated identity theft convictions. He 

asserts that the district court failed to consider the factors set forth in the 

commentary to U.S.S.G. § 5G1.2 in determining whether Counts Five 

through Seven should run consecutive to one another and that it failed to 

adequately explain its decision to impose consecutive sentences. Because 

Briceno-Romero did not raise these specific arguments in the district court, 

our review is for plain error. See United States v. Coto-Mendoza, 986 F.3d 583, 

585-86 (5th Cir. 2019), cert. denied, 142 S. Ct. 207 (2021); United States v.

Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009). The district court 

had the discretion to determine whether those imprisonment terms would be 

served concurrently or consecutively. See 18 U.S.C. § 1028A(b)(4). Based 

on the evidence regarding the extent of Briceno-Romero’s fraudulent 

conduct, his leadership role, and his prior conviction for attempted grand 

larceny by false pretense for which he was still serving probation, the district 

court did not commit a clear or obvious error by imposing consecutive 

sentences on Counts Five through Seven. See § 1028A(b)(4); U.S. Sent’g 

Guidelines Manual § 5G1.2 cmt. n.2(B); see also Puckett v. United States, 556 

U.S. 129, 135 (2009). Similarly, Briceno-Romero has not shown any clear or 

obvious error regarding the adequacy of the district court’s reasons. See

Puckett, 556 U.S. at 135.

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In addition, Briceno-Romero contends that his sentence was 

substantively unreasonable. We review a challenge to the substantive

reasonableness of a sentence for abuse of discretion. Gall v. United States, 

552 U.S. 38, 51 (2007). Briceno-Romero has not shown that the district court 

abused its discretion in determining that the aggravated identity theft 

sentences should be served consecutively. See § 1028A(b)(4). The district 

court listened to his argument for concurrent sentences and rejected it based 

on his role in the offenses. Nor has he shown that the district court abused 

its discretion by creating an unwarranted disparity between his sentence and 

the sentences of his co-defendants. See United States v. Balleza, 613 F.3d 432, 

435 (5th Cir. 2010). Briceno-Romero therefore fails to show that his sentence 

is substantively unreasonable. See Gall, 552 U.S. at 51.

The judgment of the district court is AFFIRMED.

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