Case: 16-11444 Document: 00514065516 Page: 1 Date Filed: 07/10/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-11444
Fifth Circuit
FILED
Summary Calendar July 10, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff - Appellee
v.
JESUS RODRIGUEZ-SUAREZ,
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:16-CR-39-1
Before BARKSDALE, GRAVES, and COSTA, Circuit Judges.
PER CURIAM: *
Jesus Rodriguez-Suarez appeals his sentence for illegal reentry after
removal, in violation of 8 U.S.C. § 1326. He contends his sentence of 36
months, which was an upward variance from the range calculated under the
advisory Sentencing Guidelines, is substantively unreasonable.
Rodriguez was arrested in Navarro County, Texas, for an unrelated state
offense, and was shortly thereafter detained in administrative custody by
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 16-11444
United States Immigrations and Customs Enforcement. He had been removed
after unlawfully entering the United States on seven prior occasions, and he
had also been convicted of, inter alia, a felony for illegally carrying a weapon
at a school. He pleaded guilty to the charge at issue here. In addition, he had
previously received a 30-month sentence for illegal reentry.
Although post-Booker, the Sentencing Guidelines are advisory only, the
district court must avoid significant procedural error, such as improperly
calculating the Guidelines sentencing range. Gall v. United States, 552 U.S.
38, 48–51 (2007). If no such procedural error exists, a properly preserved
objection to an ultimate sentence is reviewed for substantive reasonableness
under an abuse-of-discretion standard. Id. at 51; United States v. Delgado-
Martinez, 564 F.3d 750, 751–53 (5th Cir. 2009). In that respect, for issues
preserved in district court, its application of the Guidelines is reviewed de novo;
its factual findings, only for clear error. E.g., United States v. Cisneros-
Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). Accordingly, assuming, arguendo,
Rodriguez preserved his substantive-unreasonableness objection, his sentence
is reviewed for abuse of discretion. Gall, 552 U.S. at 51.
In reviewing an above-Guidelines sentence for substantive
reasonableness, we consider “the totality of the circumstances, including the
extent of any variance from the Guidelines range”. United States v. Brantley,
537 F.3d 347, 349 (5th Cir. 2008) (internal quotation marks and citation
omitted). Also considered is whether the 18 U.S.C. § 3553(a) sentencing factors
support the sentence and give deference to the district court’s conclusion that
those factors justify an upward variance. Brantley, 537 F.3d at 349. “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
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No. 16-11444
sentencing factors.” United States v. Peltier, 505 F.3d 389, 392 (5th Cir. 2007)
(internal quotation marks and citation omitted).
Rodriguez asserts the court placed too much weight on his seven prior
removals and not enough on his community support and recent good behavior.
The district court, however, is obviously in a superior position to find facts and
judge their import; we will not reweigh the § 3553(a) factors. See United
States v. Rodriguez-Bernal, 783 F.3d 1002, 1008 (5th Cir. 2015). The court did
not abuse its discretion by considering the need for the sentence imposed to
promote respect for the law and to provide deterrence, either generally or
specifically as to Rodriguez. See 18 U.S.C. § 3553(a)(2)(A), (B). Considering
the totality of the circumstances, the extent of the upward variance—from the
advisory Guidelines range of 15 to 21 months to a sentence of 36 months—was
not an abuse of discretion.
AFFIRMED.
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