Case: 21-10244 Document: 00516075100 Page: 1 Date Filed: 10/29/2021

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED No. 21-10244 October 29, 2021 Summary Calendar Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Adan Ramirez-Rubio, Defendant—Appellant.

Appeal from the United States District Court for the Northern District of Texas USDC No. 4:20-CR-291-1

Before King, Costa, and Ho, Circuit Judges.

Per Curiam:* Adan Ramirez-Rubio appeals his 72-month prison sentence following his guilty plea conviction for illegal reentry into the United States. He contends that the district court’s upward variance from the guidelines imprisonment range was substantively unreasonable. However, Ramirez-

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.

Case: 21-10244 Document: 00516075100 Page: 2 Date Filed: 10/29/2021

No. 21-10244

Rubio’s argument that the district court failed to afford appropriate weight to his mitigating arguments does not show that it failed to consider a factor that should have received significant weight, gave significant weight to an improper factor, or made a clear error of judgment in balancing the sentencing factors. See United States v. Fraga, 704 F.3d 432, 440-41 (5th Cir. 2013). Accordingly, the district court did not abuse its discretion. See Gall v. United States, 552 U.S. 38, 51 (2007).

Next, Ramirez-Rubio contends that his sentence violates due process because it exceeds the statutory maximum for the offense charged in the indictment. Specifically, he argues that the 8 U.S.C. § 1326(b)(2) enhancement, which increased his statutory maximum sentence to 20 years of imprisonment, should not apply because the indictment failed to allege a prior conviction. However, as Ramirez-Rubio correctly concedes, this issue is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 226-27 (1998). See United States v. Pineda-Arrellano, 492 F.3d 624, 625-26 (5th Cir. 2007).

AFFIRMED.