USA v. Claudio Perez-Miramontes, No. 17-41034 (5th Cir. 2018)
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The court issued a subsequent related opinion or order on June 22, 2018.
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Case: 17-41034 Document: 00514519178 Page: 1 Date Filed: 06/19/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 17-41034 Summary Calendar FILED June 19, 2018 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. CLAUDIO PEREZ-MIRAMONTES, Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 7:17-CR-652-1 Before STEWART, Chief Judge, and DENNIS and HAYNES, ∗ Circuit Judges. PER CURIAM: ** Claudio Perez-Miramontes pleaded guilty to being found in the United States after previous deportation. The district court imposed a 65-month sentence of imprisonment, which was above the advisory guidelines range. Perez-Miramontes argues that his sentence is substantively unreasonable Judge Haynes concurs in the judgment only. 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 17-41034 Document: 00514519178 Page: 2 Date Filed: 06/19/2018 No. 17-41034 because the district court gave “undue, significant weight to its unfounded belief that [he] may have ‘exposed others’” to his medical condition. Perez-Miramontes’s argument fails for two reasons. Underlying the district court’s allegedly “unfounded belief” is its factual determination that Perez-Miramontes may have exposed others to his medical condition. Because Perez-Miramontes did not object to this factual finding, he cannot establish plain error. See United States v. Illies, 805 F.3d 607, 609 (5th Cir. 2015); United States v. Lopez, 923 F.2d 47, 50 (5th Cir. 1991). Second, it is evident from the record that the district court was concerned with Perez-Miramontes’s recidivism and that it chose to impose the variance due to Perez-Miramontes’s criminal history, to protect the public, to promote respect for the law, and to afford adequate deterrence. See United States v. Brantley, 537 F.3d 347, 350 (2008). Perez-Miramontes’s disagreement with the district court’s weighing of the factors is insufficient to demonstrate an abuse of discretion. See Gall v. United States, 552 U.S. 38, 51 (2007). Given the significant deference that is due to a district court’s consideration of the § 3553(a) factors and the district court’s explanation of its sentencing decision, Perez-Miramontes has not demonstrated that his 65-month sentence is substantively unreasonable. See Brantley, 537 F.3d at 349; United States v. McElwee, 646 F.3d 328, 337 (5th Cir. 2011). Accordingly, the judgment of the district court is AFFIRMED. 2
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