USA v. Rodolfo Borja, No. 15-50685 (5th Cir. 2016)
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Case: 15-50685 Document: 00513599248 Page: 1 Date Filed: 07/19/2016 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 15-50685 Summary Calendar United States Court of Appeals Fifth Circuit FILED July 19, 2016 UNITED STATES OF AMERICA, Plaintiff-Appellee Lyle W. Cayce Clerk v. RODOLFO BORJA, Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 2:14-CR-1586-1 Before DAVIS, BENAVIDES, and OWEN, Circuit Judges. PER CURIAM: * Rodolfo Borja pleaded guilty to conspiracy to possess with intent to distribute 500 grams or more but less than five kilograms of cocaine and was sentenced to five years of probation. He now appeals his above-guidelines sentence of 36 months of imprisonment imposed upon the revocation of his probation. See 18 U.S.C. § 3565. Because Borja did not raise his procedural arguments in the district court and did not object to the substantive 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * Case: 15-50685 Document: 00513599248 Page: 2 Date Filed: 07/19/2016 No. 15-50685 reasonableness of his sentence, we review for plain error. See United States v. Warren, 720 F.3d 321, 326, 332 (5th Cir. 2013). We reject Borja’s claim that the district court committed procedural error by relying on the bare allegations set forth in the revocation petition. Borja had his case placed on the uncontested docket, and he did not object to the admission of the petition into the evidence or challenge the allegations contained therein. The petition detailed the offenses forming the basis for the revocation, including recitations of statements from the responding officer, the victim, and a witness. The information contained in the petition had sufficient indicia of reliability and, thus, the district court did not commit error, plain or otherwise, by making factual findings based upon it. See United States v. Nava, 624 F.3d 226, 230-31 (5th Cir. 2010); United States v. Manthei, 913 F.2d 1130, 1138 (5th Cir. 1990). The district court considered Borja’s request for a within-guidelines sentence, including mitigating factors, and clearly explained its reasons for sentencing him above that range. Therefore, Borja has not shown any procedural error related to the district court’s explanation for imposing an above-guidelines sentence. See Rita v. United States, 551 U.S. 338, 356-59 (2007); United States v. Whitelaw, 580 F.3d 256, 261-62 (5th Cir. 2009). Finally, we find meritless the claim that Borja’s sentence was substantively unreasonable because the district court erroneously took into account or afforded too much weight to a 18 U.S.C. § 3553(a) sentencing factor or his previous sentence of probation. The district court did not err by citing the need to promote respect for the law or to provide just punishment when sentencing Borja. See United States v. Kippers, 685 F.3d 491, 497-98 & n.4 (5th Cir. 2012). Moreover, to the extent that the district court relied upon the 2 Case: 15-50685 Document: 00513599248 Page: 3 Date Filed: 07/19/2016 No. 15-50685 leniency of his previous sentence of probation, that consideration did not constitute error. Id. at 499. The judgment of the district court is AFFIRMED. 3
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