     Case: 19-10117      Document: 00515132113         Page: 1    Date Filed: 09/25/2019




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

                                    No. 19-10117
                                                                             Fifth Circuit

                                                                           FILED
                                  Summary Calendar                 September 25, 2019
                                                                      Lyle W. Cayce
UNITED STATES OF AMERICA,                                                  Clerk


                                                 Plaintiff-Appellee

v.

JULIO CESAR PACHECO-ASTRUDILLO,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 5:18-CR-78-1


Before WIENER, HAYNES, and COSTA, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant Julio Cesar Pacheco-Astrudillo appeals his 36-
month, above-guidelines sentence of imprisonment following his guilty plea to
being found in the United States following a previous deportation. Pacheco-
Astrudillo argues that the 36-month sentence is substantively unreasonable
because it is greater than necessary to achieve the sentencing goals of 18




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-10117    Document: 00515132113     Page: 2   Date Filed: 09/25/2019


                                 No. 19-10117

U.S.C. § 3553(a). Specifically, he contends that the district court gave undue
weight to his more than 19-year-old criminal history.
      We review a district court’s non-guidelines sentence for abuse of
discretion under the totality of the circumstances. See Gall v. United States,
522 U.S. 38, 51 (2007). The instant record reflects that the district court
properly considered the § 3553(a) factors. At sentencing, the district court
stated that it was imposing an upward variance to “adequately address the
sentencing objectives of punishment and deterrence.” Specifically, the district
court noted that Pacheco-Astrudillo had five prior convictions that received no
criminal history points. The district court further noted that three of Pacheco-
Astrudillo’s “convictions were alcohol-related, at least two of which were DWI
convictions.” The district court also noted Pacheco-Astrudillo’s conviction for
possession of cocaine, and that he had “a conviction for assault and battery
with a deadly weapon in which [Pacheco-Astrudillo] shot another person.”
Under the totality of the circumstances, the 36-month sentence is reasonable.
See United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008). Further, we
have upheld similar upward variances. See id. at 349-50; United States v.
Lopez-Velasquez, 526 F.3d 804, 807 (5th Cir. 2008); United States v. Smith, 417
F.3d 483, 492-93 (5th Cir. 2005). Finally, Pacheco-Astrudillo’s challenge to 8
U.S.C. § 1326(b), which is grounded in Apprendi v. New Jersey, 530 U.S. 466
(2000), is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224
(1998).
      AFFIRMED.




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