Case: 17-41126      Document: 00514522535         Page: 1    Date Filed: 06/21/2018




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

                                    No. 17-41126                               FILED
                                  Summary Calendar                         June 21, 2018
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JULIO CESAR VELASQUEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:17-CR-673-1


Before BENAVIDES, SOUTHWICK, and COSTA, Circuit Judges.
PER CURIAM: *
       Julio Cesar Velasquez appeals his guilty plea conviction for possession
with intent to distribute five kilograms or more of cocaine, a controlled
substance, and his above-guidelines sentence of 150 months of imprisonment.
Velasquez argues that the factual basis was insufficient to support his guilty
plea because the Government did not show that it would prove by a
preponderance of the evidence that he knew the type of drug and drug quantity


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-41126

involved in the 21 U.S.C. § 841(a)(1) offense. While recognizing that this court
has previously held that the Government is not required to prove the
defendant’s knowledge of the type of drug and quantity involved in the offense,
he contends that there has been an intervening Supreme Court decision,
Flores-Figueroa v. United States, 556 U.S. 646 (2009), that requires proof of
intent with respect to all material elements of an offense. However, Velasquez
acknowledges that this court in United States v. Betancourt, 586 F.3d 303, 309
(5th Cir. 2009), held that the broad rule announced in Flores-Figueroa did not
apply to an offense under § 841 and correctly concedes that this issue is
foreclosed by this court’s precedent. See United States v. Rodriguez, 602 F.3d
346, 352 (5th Cir. 2010).
      Second, Velasquez argues that the 150-month sentence of imprisonment
is substantively unreasonable because it represents a clear error in the district
court’s judgment in balancing the sentencing factors that constituted an abuse
of discretion. He asserts that the district court gave undue weight to what it
perceived as his immediate return to drug trafficking when he needed extra
money. He contends that a lesser sentence would have been sufficient and not
greater than necessary in light of the sentencing factors.
      This court reviews the substantive reasonableness of the sentence
imposed for an abuse of discretion. United States v. Delgado-Martinez, 564
F.3d 750, 752-53 (5th Cir. 2009).     Contrary to Velasquez’s argument, the
district court did not put undue weight on the fact that Velasquez returned to
drug trafficking when he needed money. That factor was one, among many,
considered by the district court, and it was a factor relevant to his personal
history and characteristics.    18 U.S.C. § 3553(a).      After considering the
mitigating evidence presented by Velasquez and his counsel, the district court
stated that the above-guidelines sentence was in response to the need to



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                                  No. 17-41126

protect the community from the danger of drug trafficking, the need to promote
Velasquez’s respect for the law in light of his violation of the terms of
supervised release on two occasions and the commission of the instant offense
just after completing that term of supervised release for a prior drug
conviction, and the clear need to deter Velasquez from engaging in further
criminal conduct.
      In sum, the district court did not abuse its discretion in imposing the
above-guidelines sentence. The court took into account the relevant factors,
including the relevant § 3553(a) factors, it did not give significant weight to an
improper factor, and its sentence does not represent a clear error of judgment
by the district court in balancing the sentencing factors. See United States v.
Brantley, 537 F.3d 347, 350 (5th Cir. 2008); United States v. Smith, 440 F.3d
704, 708 (5th Cir. 2006).
      Accordingly, Velasquez’s conviction and sentence are AFFIRMED.




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