United States v. Rodriguez-Ortiz

Case: 25-50138 Document: 55-1 Page: 1 Date Filed: 12/11/2025

United States Court of Appeals for the Fifth Circuit

____________

United States Court of Appeals

Fifth Circuit

No. 25-50138

Summary Calendar FILED ____________ December 11, 2025

Lyle W. Cayce United States of America, Clerk

Plaintiff—Appellee, versus

Alex Josue Rodriguez-Ortiz,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Western District of Texas USDC No. 2:24-CR-2051-1

______________________________

Before Elrod, Chief Judge, and Higginson and Ramirez, Circuit Judges.

Per Curiam: *

Alex Josue Rodriguez-Ortiz pleaded guilty to illegal reentry into the United States, and the district court imposed an above-Guidelines sentence of 36 months’ imprisonment followed by 3 years of supervised release. On Case: 25-50138 Document: 55-1 Page: 2 Date Filed: 12/11/2025

No. 25-50138 appeal, Rodriguez-Ortiz challenges his sentence as both procedurally and substantively unreasonable.

First, Rodriguez-Ortiz asserts that his sentence is unreasonable because it does not comply with U.S.S.G. § 4A1.3, p.s. (2024), which provides the standards for upward and downward departures under the Guidelines. 1 This argument fails because the district court imposed an upward variance, not an upward departure pursuant to § 4A1.3. A departure and a variance are separate and distinct sentencing mechanisms. See United States v. Jacobs, 635 F.3d 778, 782 (5th Cir. 2011). Because § 4A1.3 has no bearing on Rodriguez-Ortiz’s case, we disregard this argument. See United States v. Mejia-Huerta, 480 F.3d 713, 723 (5th Cir. 2007).

Second, Rodriguez-Ortiz contends that the district court failed to articulate a reasoned explanation for his sentence. This argument likewise fails. Given that Rodriguez-Ortiz did not raise this objection in the district court, we review for plain error. See United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009). This is not a case where the sentencing judge “did not mention any [18 U.S.C.] § 3553 factors at all” and “did not give any reasons for its sentence beyond a bare recitation of the Guideline[s]’s calculation.” United States v. Fraga, 704 F.3d 432, 439 (5th Cir. 2013). Rather, the district court provided specific reasons for the 36-month sentence of imprisonment that were relevant to Rodriguez-Ortiz individually. Thus, Rodriguez-Ortiz has not established a clear or obvious procedural error. See Puckett v. United States, 556 U.S. 129, 135 (2009).

Case: 25-50138 Document: 55-1 Page: 3 Date Filed: 12/11/2025

No. 25-50138

Finally, Rodriguez-Ortiz challenges the substantive reasonableness of his sentence, contending that the district court made a clear error of judgment in balancing the sentencing factors and giving undue weight to his criminal history. This argument is also unavailing. We review the substantiative reasonableness of a sentence for an abuse of discretion. United States v. Burney, 992 F.3d 398, 399–400 (5th Cir. 2021). In imposing a non- Guidelines sentence, the district court may rely on factors already taken into account by the Guidelines, including a defendant’s criminal history, see United States v. Brantley, 537 F.3d 347, 350 (5th Cir. 2008), and may rely on other factors such as his prior criminal conduct that did not result in convictions, United States v. Lopez-Velasquez, 526 F.3d 804, 807 (5th Cir. 2008). Accordingly, the factors that the district court considered in this case were all “permissible factors for consideration under [] § 3553(a) in determining whether a sentence inside or outside the Guidelines would be appropriate.” United States v. Williams, 517 F.3d 801, 811 (5th Cir. 2008).

As to the extent of the variance, the district court likewise did not abuse its discretion. Rodriguez-Ortiz’s 36-month sentence of imprisonment is 12 months greater than the Guidelines maximum but well below the 120- month statutory maximum. See 8 U.S.C. §§ 1326(a), (b)(1). We have upheld proportionally similar, or greater, variances. See, e.g., United States v. Smith, 417 F.3d 483, 492–93 (5th Cir. 2005); United States v. Key, 599 F.3d 469, 475- 76 (5th Cir. 2010).

Accordingly, the judgment of the district court is AFFIRMED.