Case: 14-40221 Document: 00512869012 Page: 1 Date Filed: 12/15/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-40221
c/w No. 14-40225
United States Court of Appeals
Fifth Circuit
Summary Calendar FILED
December 15, 2014
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
DAVID ROJAS-BUENROSTRO,
Defendant-Appellant
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 2:13-CR-929-1
Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
David Rojas-Buenrostro (Rojas) is appealing the sentences imposed
following his guilty plea to being found unlawfully present in the United States
and the revocation of his supervised release for an earlier illegal reentry
conviction. He argues that the above-guidelines-range 40-month sentence
imposed for the new illegal entry offense is substantively unreasonable
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-40221 Document: 00512869012 Page: 2 Date Filed: 12/15/2014
No. 14-40221
c/w No. 14-40225
because the district court gave undue significant weight to the need for
deterrence and protection of the public, which needs were met by the
consecutively imposed 24-month revocation sentence. Further, he complains
that the district court gave too much weight to his violent criminal history
based on a 1993 conviction and failed to take into account that he was 50 years
old and he had not committed any violent offenses since 1993.
Rojas failed to object in the district court to the illegal reentry sentence
on the specific grounds argued in this court and, therefore, review is limited to
plain error. See Puckett v. United States, 556 U.S. 129, 135 (2009); United
States v. Peltier, 505 F.3d 389, 391 (5th Cir. 2007). Sentences, whether inside
or outside the Guidelines, are reviewed for reasonableness in light of the 18
U.S.C. § 3553(a) factors. Gall v. United States, 552 U.S. 38, 51 (2007). A
sentence is unreasonable if it “(1) does not account for a factor that should have
received significant weight, (2) gives significant weight to an irrelevant or
improper factor, or (3) represents a clear error of judgment in balancing the
sentencing factors.” United States v. Chandler, 732 F.3d 434, 437 (5th Cir.
2013) (internal quotation and citations omitted).
The record reflects that the district court considered Rojas’s mitigating
arguments but appropriately relied on several § 3553(a) factors in determining
that an above-guideline sentence was warranted, including Rojas’s criminal
history and characteristics, the need to provide adequate deterrence to his
further recidivism, and the need to protect the public from further crimes. The
district court’s decision to vary 10 months above the advisory guidelines range
was based on permissible factors that advanced the objectives set forth in
§ 3553(a). Further, the extent of the variance was not significant compared to
other more substantial variances affirmed by the court. See United States v.
Brantley, 537 F.3d 347, 349-50 (5th Cir. 2008); United States v. Lopez-
2
Case: 14-40221 Document: 00512869012 Page: 3 Date Filed: 12/15/2014
No. 14-40221
c/w No. 14-40225
Velasquez, 526 F.3d 804, 807 (5th Cir. 2008). The fact that the district court
imposed the revocation sentence to run consecutively to the 40-month sentence
has no bearing on the reasonableness of the sentence for the most recent
conviction. See Lopez-Velasquez, 526 F.3d at 808-09. Rojas has not
demonstrated that the district court committed clear or obvious error in
imposing the 40-month sentence. See Puckett, 556 U.S. at 135.
Secondly, Rojas argues that his statutory maximum 24-month
revocation sentence that was above the 8-14-month advisory policy statement
range was substantively and plainly unreasonable. He again argues that the
district court gave too much weight to deterrence, protection of the public, and
his dated violent criminal history. Further, Rojas asserts that the lengthy
consecutive sentence was unreasonable in light of the 40-month sentence
imposed for the new offense.
This court generally reviews a revocation of supervised release sentence
under a plainly unreasonable standard. United States v. Warren, 720 F.3d 321,
326 (5th Cir. 2013). However, Rojas failed to object in the district court to the
sentence on the specific grounds argued on appeal and, therefore, review is
limited to plain error. See Puckett, 556 U.S. at 135; Peltier, 505 F.3d at 391.
Revocation sentences exceeding the guidelines range but not exceeding the
statutory maximum have been upheld as a matter of routine against
challenges that the sentences were substantively unreasonable. See Warren,
720 F.3d at 332. Rojas’s 24-month sentence was not substantively or plainly
unreasonable. See Warren, 720 F.3d at 332; United States v. Whitelaw, 580
F.3d 256, 265 (5th Cir. 2009). The district court did not commit clear or obvious
error in imposing the sentence. See Puckett, 556 U.S. at 135.
The sentences are AFFIRMED.
3