Case: 14-50965 Document: 00512995957 Page: 1 Date Filed: 04/07/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-50965
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
April 7, 2015
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
CARLOS HOMAR TOVAR-TORRES,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:14-CR-92-1
Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM: *
Carlos Homar Tovar-Torres appeals the above-guidelines, 30-month
sentence imposed for his illegal reentry conviction. He contends that his
sentence is substantively unreasonable and greater than necessary to satisfy
the 18 U.S.C. § 3553(a) factors.
We review the substantive reasonableness of a sentence for abuse of
discretion. Gall v. United States, 552 U.S. 38, 51 (2007). “A non-Guideline
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-50965 Document: 00512995957 Page: 2 Date Filed: 04/07/2015
No. 14-50965
sentence unreasonably fails to reflect the statutory sentencing factors where 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. Smith, 440 F.3d 704, 708 (5th Cir. 2006).
The district court cited Tovar-Torres’s prior immigration convictions and
disciplinary violations at his detention facility as evincing a lack of respect of
the law and necessitating an above-guidelines sentence in order to deter Tovar-
Torres and protect the public. Tovar-Torres’s disagreement with the district
court’s assessment of these factors is not sufficient to show an abuse of
discretion. See Gall, 552 U.S. at 51. The extent of the variance, nine months
above the guidelines maximum of 21 months, is within the range of variances
that we have upheld. See United States v. McElwee, 646 F.3d 328, 345 (5th
Cir. 2011). Given the significant deference that is due to a district court’s
consideration of the § 3553(a) factors, see Gall, 552 U.S. at 51, and the district
court’s reasons for its sentencing decision, Tovar-Torres has not demonstrated
that the sentence is substantively unreasonable, see McElwee, 646 F.3d at 344-
45.
The judgment of the district court is AFFIRMED.
2