IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-11147

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff–Appellee,

v.

JORGE RIOS-DIAZ, also known as Jose Diaz,

Defendant–Appellant.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:16-CR-19-1

Before JOLLY, OWEN, and HAYNES, Circuit Judges.

PER CURIAM:*

Jorge Rios-Diaz appeals the 36-month above-guidelines sentence 

imposed in connection with his conviction for illegal reentry after deportation. 

He argues that the district court committed procedural error by 

misinterpreting U.S.S.G. § 4A1.3 and U.S.S.G. § 5K2.0 when applying the 

upward departure. Rios-Diaz also challenges the substantive reasonableness 

of his sentence. 

 

* 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

August 11, 2017

Lyle W. Cayce

Clerk

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No. 16-11147

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The district court imposed Rios-Diaz’s sentence as a departure under the 

Guidelines and alternatively as an upward variance based on the sentencing 

factors of 18 U.S.C. § 3553(a). Because we may affirm the sentence as a 

variance, we pretermit Rios-Diaz’s claim that the sentence is unreasonable 

because the district court procedurally erred in departing based on 

misinterpretations of § 4A1.3 and § 5K2.0. See United States v. Rodriguez, 523 

F.3d 519, 525 (5th Cir. 2008). 

Though Rios-Diaz contends that the district court’s conclusion that an 

upward variance was warranted under § 3553(a) does not indicate that the 

sentence would be the same absent the error in upwardly departing, his 

reliance on United States v. Ibarra-Luna, 628 F.3d 712, 717 (5th Cir. 2010), is 

misplaced. Contrary to Rios-Diaz’s assertion, Ibarra-Luna does not provide 

authority for requiring the Government to show that the district court would 

have imposed the same sentence but for an alleged § 4A1.3 error. Rather, 

Ibarra-Luna is concerned with “an incorrect Guidelines calculation.” 628 F.3d

at 717. Rios-Diaz did not object to the calculation of the guidelines range in 

the district court and does not contend on appeal that there was an incorrect 

calculation of the guidelines range. 

In reviewing a non-guidelines sentence for substantive reasonableness, 

we consider “the totality of the circumstances, including the extent of any 

variance from the Guidelines range, to determine whether as a matter of 

substance, the sentencing factors in section 3553(a) support the sentence.” 

United States v. Gerezano-Rosales, 692 F.3d 393, 400 (5th Cir. 2012) (internal 

quotation marks and citation omitted). Although Rios-Diaz asserts that the 

district court gave too much weight to his conviction for failure to identify, the 

record does not support his argument. The court noted that Rios-Diaz had 

been removed from the United States on three occasions and had engaged in 

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“some pretty bad conduct.” Though the court referenced Rios-Diaz’s failure-toidentify conviction, the court also discussed Rios-Diaz’s multiple assaults, gang 

membership, and firearm offense. The district court relied on several 

appropriate § 3553(a) factors in determining that an upward variance was 

warranted, including the nature and circumstances of the offense, Rios-Diaz’s 

history and characteristics, the need to promote respect for the law, the need 

to provide adequate deterrence to further recidivism, and the need to protect 

the public from further crimes. Thus, the decision to vary above the advisory 

guidelines range was based on permissible factors that advanced the objectives 

set forth in § 3553(a). See United States v. Smith, 440 F.3d 704, 707 (5th Cir. 

2006). 

Additionally, although the 36-month sentence is 20 months greater than 

the top of the guidelines range, we have upheld much greater variances. See, 

e.g., United States v. Key, 599 F.3d 469, 475-76 (5th Cir. 2010); United States 

v. Brantley, 537 F.3d 347, 348-50 (5th Cir. 2008). Based on the totality of the 

circumstances, including the significant deference that is due to a district 

court’s consideration of the § 3553(a) factors, the sentence imposed was 

reasonable. See Gall v. United States, 552 U.S. 38, 50-53 (2007).

Finally, Rios-Diaz concedes that his challenge to his sentence under 8 

U.S.C. § 1326(b) is foreclosed by Almendarez-Torres v. United States, 523 U.S. 

224, 239-47 (1998), but raises the issue to preserve it for further review. The 

judgment of the district court is AFFIRMED.

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