Case: 23-60459 Document: 42-1 Page: 1 Date Filed: 04/25/2024

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit ____________ FILED April 25, 2024 No. 23-60459 Summary Calendar Lyle W. Cayce Clerk ____________ United States of America, Plaintiff—Appellee, versus Andrago Gaston, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Northern District of Mississippi USDC No. 1:22-CR-79-1 ______________________________ Before Davis, Ho, and Ramirez, Circuit Judges.

Per Curiam:* Andrago Gaston pleaded guilty to a single count of possession with intent to distribute fentanyl. See 21 U.S.C. § 841(a)(1), (b)(1)(C). The district court sentenced him at the top of the applicable guidelines range to months of imprisonment.

_____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5.

Case: 23-60459 Document: 42-1 Page: 2 Date Filed: 04/25/2024

No. 23-60459

On appeal, Gaston argues that the sentence imposed was unreasonable. Specifically, he argues that his presentence report (PSR) should not have included paragraphs describing other conduct that was not relevant conduct for the instant offense and that did not result in an arrest or charge. Gaston also argues that the district court relied too heavily on this information or gave it too much weight in selecting his sentence.

Because Gaston filed written objections to the inclusion of these paragraphs, reurged this objection at sentencing, requested a lesser sentence, and objected to the reasonableness of the sentence ultimately imposed, he preserved the issues for appeal. Therefore, we review the substantive reasonableness of his sentence under a deferential abuse-of-discretion standard. See Gall v. United States, 552 U.S. 38, 51 (2007). Because the sentence imposed is within a properly calculated guidelines range, it is presumptively reasonable. See United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). This presumption “is rebutted only upon a showing that the sentence does not account for a factor that should receive significant weight, it gives significant weight to an irrelevant or improper factor, or it represents a clear error of judgment in balancing sentencing factors.” Id. We conclude that there was no error in including these paragraphs in the PSR. See 18 U.S.C. § 3661; United States v. Harris, 702 F.3d 226, 230 (5th Cir. 2012). We also note that, in response to his objections, the district court stated at sentencing that Gaston’s sentence would be based upon his actual convictions. In light of the district court’s statements, we conclude that Gaston has not shown that his sentence gave significant weight to an improper factor or that it represents a clear error of judgment in balancing the sentencing factors. See Cooks, 589 F.3d at 186. Thus, Gaston has not rebutted the presumption of reasonableness.

Accordingly, the district court’s judgment is AFFIRMED.