# United States Court of Appeals **for the Fifth Circuit**

____________ No. 22-20617 Summary Calendar

____________ United States of America, Plaintiff—Appellee ,

versus Pedro Ivan Espino-Rosales, Defendant—Appellant

.

______________________________ Appeal from the United States District Court for the Southern District of Texas USDC No. 4:20-CR-631-1

______________________________ Before Elrod, Oldham, and Wilson, Circuit Judges

. Per Curiam: * Pedro Ivan Espino-Rosales appeal s his 36-month above-guideline sentence for illegal reentry by a previous ly deported noncitizen after a felony conviction pursuant to 8 U. S.C. § 1326(a) and (b)(1). Espino-Rosales argues that his sentence is substantively unrea sonable because: (1) the district court did not account for sentencing disparit ies when issuing its ruling; (2) the

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* This opinion is not designated for publication. See 5th Cir. R. 47.5. United States Court of Appeals Fifth Circuit 

### FILED September 21, 2023 Lyle W. Cayce Clerk Case: 22-20617 Document: 00516904182 Page: 1 Date Filed: 09/21/2023No. 22-20617

2 district court failed to ac count for his personal hist ory and characteristics, specifically his cultural assimilation; (3 ) the district court erred in considering his circumstances as a whole.
This court reviews the substantive reasonableness of a sentence under a deferential abuse-of-discretion standard. Gall v. United States , 552 U.S. 38, 46-47, 49-51 (2007). An above-guidelin es sentence may be unreasonable “if it (1) does not account for a factor th at should have received significant weight, (2) gives significant weight to an irrelevant or improper factor, or (3) represents a clear error of judgment in balancing the sentencing factors.” United States v. Warren , 720 F.3d 321, 332 (5th Ci r. 2013) (internal quotation marks and citation omitted). Espino-Rosales fails to show that the district court abused its discretion in varying above the sentenci ng guidelines. First, his sentencing disparity argument fails as it makes no comparison between his offense conduct, particular crimin al history, aggravating or mitigating factors, and related conduct of other defendants who received lesser sentences. See United States v. Waguespack , 935 F.3d 322, 337 (5th Cir. 2019). Second, although a sentencing court need not gi ve dispositive weight to a defendant’s cultural assimilation, see United States v. Rodriguez , 660 F.3d 231, 232, 234- 35 (5th Cir. 2011), the record shows the district court considered EspinoRosales’ cultural assimilation argu ment but found this factor to be outweighed by his criminal history and pattern of illegally reentering the country. Finally, though Espino-Rosale s states otherwise, his argument that the court improperly balanced the fact ors in light of the circumstances as a whole ultimately suggests that the district court should have weighed the sentencing factors differently. Di sagreement with the district court’s weighing of the 18 U.S.C. § 3553(a) factors is an insufficient ground for reversal. United States v. Malone , 828 F.3d 331, 342 (5th Cir. 2016). In any Case: 22-20617 Document: 00516904182 Page: 2 Date Filed: 09/21/2023No. 22-20617

3 event, the record shows the court consid ered and weighed all the factors, and we give deference to its assessment of their import. See Gall, 552 U.S. at 51. Espino-Rosales also argues that the district court committed a substantive error when it relied on erro neous facts, specifically the use of the words “every time,” “benefit” and “opportunities” when detailing his criminal history and illegal reentries. Because he did not raise this argument in the district court, review is limited to plain error. See United States v. CotoMendoza , 986 F.3d 583, 586 (5th Cir. 2021).
The court committed no clear or ob vious error as the presentence report shows a pattern of unlawful en tries followed by convictions for other offenses. Further, given the court’s consideration of the proper factors and the record, he has failed to demonstrate a “reason able probability that, but for the [claimed] error, he would ha ve received a lesser sentence.” United States v. Johnson , 943 F.3d 735, 738 (5th Cir. 2019).
AFFIRMED. Case: 22-20617 Document: 00516904182 Page: 3 Date Filed: 09/21/2023