Case: 21-20227 Document: 00516069787 Page: 1 Date Filed: 10/26/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
October 26, 2021
No. 21-20227
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Valente Arias-Avila,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:20-CR-662-1
Before Barksdale, Willett, and Duncan, Circuit Judges.
Per Curiam:*
Valente Arias-Avila was convicted of illegal reentry, in violation of
8 U.S.C. §§ 1326(a), (b)(1). He contests his above-Sentencing Guidelines
term of 48-months’ imprisonment, contending it is substantively
unreasonable because it represents an extreme deviation from the
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 21-20227 Document: 00516069787 Page: 2 Date Filed: 10/26/2021
No. 21-20227
Guidelines’ recommended two-to-eight-month term of imprisonment which
is not justified by the facts in this case.
Although post-Booker, the 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, 46, 51
(2007). If no such procedural error exists, a properly preserved objection to
an ultimate sentence, as in this case, 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).
Arias does not claim procedural error, placing at issue only whether a
lesser sentence was appropriate in the light of how the court weighed his
history and characteristics. For the following reasons, he does not establish
abuse of discretion. See Gall, 552 U.S. at 51 (noting review “give[s] due
deference to the district court’s decision that the [18 U.S.C.] § 3553(a)
[sentencing] factors, on a whole, justify the extent of the variance”; and
contention “appellate court might reasonably have concluded that a different
sentence was appropriate is insufficient to justify reversal of the district
court”.); United States v. Hernandez, 876 F.3d 161, 167 (5th Cir. 2017)
(stating our court will not “reweigh the sentencing factors and substitute [its]
judgment for that of the district court”).
The district court’s considerable departure or variance is not
unprecedented. See, e.g., United States v. McElwee, 646 F.3d 328, 342–45 (5th
Cir. 2011) (noting our court has “upheld substantial Guidelines deviations”
when “district court based its upward variance on permissible, properly
spelled-out considerations”). The court provided such considerations
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No. 21-20227
concerning Arias’ history and characteristics, concluding the Guidelines
range failed to provide an appropriate sentence. See id. A judge “may not
presume that the Guidelines range is reasonable. He must make an
individualized assessment based on the facts presented”. Gall, 552 U.S. at
50 (citation omitted).
AFFIRMED.
3
United States v. Arias-Avila
Combined Opinion