      Case: 18-11302      Document: 00515103874        Page: 1    Date Filed: 09/04/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals
                                                                              Fifth Circuit


                                    No. 18-11302                            FILED
                                                                    September 4, 2019
                                  Summary Calendar
                                                                       Lyle W. Cayce
                                                                            Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOE ROSALES,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:18-CR-55-1


Before WIENER, HAYNES, and COSTA, Circuit Judges.
PER CURIAM: *
       Joe Rosales appeals the 360-month sentence imposed following his guilty
plea conviction for conspiracy to possess with the intent to distribute
methamphetamine, urging that his sentence is unreasonable. He challenges
the assessment of two of his ten criminal history points. He also argues that
the    district   court   erroneously     converted     drug     proceeds         entirely            to
methamphetamine rather than other types of drugs. Finally, he challenges


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                No. 18-11302

the substantive reasonableness of his sentence arguing that the district court
“failed to give regard to and balance all the relevant sentencing factors,”
resulting in a sentence that was greater than necessary to achieve the
sentencing purposes of 18 U.S.C. § 3553(a).
      To the extent Rosales argues that he should not have been assessed two
criminal history points under U.S.S.G. § 4A1.1(d) for committing the instant
offense while serving a sentence of probation, his argument is not well-taken.
Rosales asserts that his probation for his 2014 Texas DWI conviction should
have expired in November 2016 and only remained pending because the State
failed to adjudicate the October 2016 motion to revoke filed in that case
promptly and did not execute the revocation warrant until after he was
arrested on the instant charges.    Without the enhancement, his criminal
history score would have been IV rather than V.          However, the record
establishes that Rosales began engaging in the instant methamphetamine
conspiracy in August 2016. The August 2016 start date of his offense was well
within the two-year term of probation, predating both the November 2016
expiration date and the October 2016 motion to revoke. Thus, the delay had
no bearing on the assessment of the two criminal history points.            See
§ 4A1.1(d). It follows that the district court’s rejection of his request for a
below-guidelines sentence on this ground did not result in an unreasonable
sentence.
      Next, Rosales urges that it was “unreasonable” for the district court to
convert $34,929.10 in drug proceeds authorities discovered in his house and
storage units to methamphetamine rather than cocaine or marijuana for
sentencing purposes. He argues that conversion to methamphetamine yields
the highest offense level and that, had the PSR converted the drug proceeds
into either cocaine or marijuana instead, his total offense level would have
been 38 rather than 40.

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                                  No. 18-11302

      This court need not address the merits of the claim because, even
assuming arguendo that Rosales is correct and that his total offense level
should have been 38, his resulting guidelines range would have remained
unchanged. See U.S.S.G. Ch. 5, Pt. A. Consequently, any error was harmless;
it also did not affect his substantial rights.   See United States v. Garcia-
Gonzalez, 714 F.3d 306, 315 (5th Cir. 2013).
      Finally, Rosales contends that the low-end guideline sentence he
received was greater than necessary to achieve the purposes of § 3553(a),
specifically asserting that the district court failed to consider the mitigating
arguments he raised at sentencing. To the contrary, the record shows that the
district court considered his mitigating arguments in favor of a below-
guidelines sentence, but in weighing those arguments and the § 3553(a)
factors, determined that a low-end guidelines sentence was appropriate. See
United States v. Diaz Sanchez, 714 F.3d 289, 294-95 (5th Cir. 2013). In effect,
Rosales disagrees with the court’s sentencing decision and asks this court to
reweigh the § 3553(a) factors, which this court will not do. See Gall v. United
States, 552 U.S. 38, 51 (2007).
      For the foregoing reasons, the district court’s judgment is AFFIRMED.




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