Case: 16-41714 Document: 00514278293 Page: 1 Date Filed: 12/19/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-41714 FILED
Summary Calendar December 19, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA,
Clerk
Plaintiff-Appellee
v.
TONIE JO ANN GONZALEZ-PACHECO,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:16-CR-586-3
Before STEWART, Chief Judge, and ELROD and HIGGINSON, Circuit
Judges.
PER CURIAM: *
Tonie Jo Ann Gonzalez-Pacheco pleaded guilty without the benefit of a
plea agreement to conspiracy to transport undocumented aliens within the
United States and to four counts of the transportation of undocumented aliens
within the United States for the purpose of commercial advantage and private
financial gain. The district court varied upwardly from the 15-to-21-month
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-41714 Document: 00514278293 Page: 2 Date Filed: 12/19/2017
No. 16-41714
advisory sentencing guidelines range and sentenced Gonzalez-Pacheco to 24
months of imprisonment and three years of supervised release for each count,
to run concurrently.
On appeal, Gonzalez-Pacheco argues that her sentence is procedurally
unreasonable because the district court did not properly consider the 18 U.S.C.
§ 3553(a) factors at sentencing. She argues that the district court failed to
consider her statements regarding her family circumstances and the low
likelihood that she would reoffend, and thus the court did not consider the
§ 3553(a) factors involving her history and characteristics, her low risk of
rescidivism, or the need for just punishment. As Gonzalez-Pacheco concedes,
because she did not raise this issue at sentencing, it should be reviewed for
plain error. See United States v. Mondragon-Santiago, 564 F.3d 357, 364 (5th
Cir. 2009). The record does not suggest that the district court failed to consider
these § 3553(a) factors. Moreover, a district court’s implicit consideration of
the § 3553(a) factors may be sufficient. See United States v. Kippers, 685 F.3d
491, 498 (5th Cir. 2012). Accordingly, Gonzalez-Pacheco has not demonstrated
plain error. See Mondragon-Santiago, 564 F.3d at 364.
Gonzalez-Pacheco also argues that her sentence is procedurally
unreasonable because the district court triple-counted her criminal history by
considering it for her offense characteristics, her criminal history, and the
upward variance. Because she did not raise this issue in the district court, we
review it for plain error. See id. at 364. Double-counting a defendant’s criminal
history in guidelines calculations does not necessarily render a sentence
unreasonable. See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.
2009). Additionally, a district court may consider a defendant’s prior
convictions and sentences when varying upward. See United States v.
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No. 16-41714
Brantley, 537 F.3d 347, 350 (5th Cir. 2008). Therefore, Gonzalez-Pacheco has
not demonstrated plain error. See Mondragon-Santiago, 564 F.3d at 364.
Finally, Gonzalez-Pacheco argues that her sentence is substantively
unreasonable. She contends that the upward variance based on her criminal
history was unwarranted; that the increase in her sentence from probation for
her previous offenses to 24 months for the instant offense was too harsh; that
adequate deterrence and protection of the public could have been accomplished
with a lower sentence due to low rates of recidivism for similar defendants;
that her lack of violent criminal history established that a 24-month sentence
was not needed to protect the public; and that an upward variance based on
her criminal history created an unwarranted sentencing disparity. Although
we ordinarily review the substantive reasonableness of a sentence for abuse of
discretion, see Gall v. United States, 552 U.S. 38, 51 (2007), Gonzalez-Pacheco’s
failure to object to the reasonableness of her sentence limits our review to plain
error, see United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).
The record establishes that the district court properly considered the
§ 3553(a) factors at sentencing. Although Gonzalez-Pacheco’s 24-month
sentence is three months greater than the top of the 15-to-21-month guidelines
range, we have upheld variances considerably greater than the increase to her
sentence. See, e.g., Brantley, 537 F.3d at 348-50. Given the significant
deference that is due to a district court’s consideration of the § 3553(a) factors
and the district court’s reasons for its sentencing decision, Gonzalez-Pacheco
has not demonstrated that the district court committed plain error by imposing
a sentence that is substantively unreasonable. See Gall, 552 U.S. at 50-53;
United States v. Gerezano-Rosales, 692 F.3d 393, 400 (5th Cir. 2012); Peltier,
505 F.3d at 391-92.
Accordingly, the district court’s judgment is AFFIRMED.
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