United States v. Rios-Joaquina

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
July 10, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-40305
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JORGE RIOS-JOAQUINA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:04-CR-108-ALL
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Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Jorge Rios-Joaquina (Rios) appeals the 60-month sentence
that he received after he pleaded guilty to illegal reentry by a
deported alien. Rios argues that the district court violated his
due process rights when it upwardly departed without stating on
the record that aggravating or mitigating circumstances were
present that had not been considered by the Sentencing Commission
when it formulated the Guidelines. Rios argues, alternatively,

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No. 05-40305
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that if United States v. Booker, 543 U.S. 220 (2005), applies,
the upward departure was unreasonable.
Rios fails to meet his burden of showing that the district
court’s post Booker, non-guidelines sentence, which was an upward
deviation from the guidelines range of imprisonment, was error,
plain or otherwise. See United States v. Jones, 444 F.3d 430,
434-36 (5th Cir. 2006); United States v. Smith, 440 F.3d 704,
707-10 (5th Cir. 2006).
AFFIRMED.

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