Case: 19-11225        Document: 00515532476             Page: 1      Date Filed: 08/19/2020




             United States Court of Appeals
                  for the Fifth Circuit                                         United States Court of Appeals
                                                                                         Fifth Circuit

                                                                                       FILED
                                    No. 19-11225                                 August 19, 2020
                                  Summary Calendar                                Lyle W. Cayce
                                                                                       Clerk

 United States of America,

                                                                   Plaintiff—Appellee,

                                          versus

 Justin Edward Martin,

                                                               Defendant—Appellant.



                  Appeal from the United States District Court
                      for the Northern District of Texas
                           USDC No. 4:19-CR-118-1


 Before Jones, Barksdale, and Stewart, Circuit Judges.
 Per Curiam:*
         Justin Edward Martin pleaded guilty to one count of being a felon in
 possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The district
 court sentenced him to, inter alia, an above-Sentencing Guidelines term of


         *
          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 not be published and is not precedent except under the limited circumstances set forth in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: 19-11225      Document: 00515532476           Page: 2     Date Filed: 08/19/2020




                                    No. 19-11225


 120-months’ imprisonment. (Martin’s advisory Guidelines sentencing range
 was 92- to 115-months’ imprisonment. His 120-month sentence reflected the
 statutory maximum, pursuant to 18 U.S.C. § 924(a)(2), for the § 922(g)(1)
 offense.) Martin challenges the substantive reasonableness of his sentence,
 claiming the court varied upward “based solely on [Martin’s] past criminal
 conduct”.
        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 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).
        As stated, the substantive reasonableness of Martin’s 120-months’
 imprisonment is the sole issue. And, because Martin sought a sentence
 within or below his advisory Guidelines range in district court, he preserved
 his substantive-reasonableness challenge by “advocat[ing] for a sentence
 shorter than the one ultimately imposed”. Holguin-Hernandez v. United
 States, 140 S. Ct. 762, 766 (2020).
        A non-Guidelines sentence, as in this instance, is substantively
 unreasonable “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” in 18 U.S.C. § 3553(a). United States v. Broussard, 669
 F.3d 537, 551 (5th Cir. 2012) (citation omitted). “In reviewing a non-
 [G]uidelines sentence for substantive unreasonableness, [our] court will




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                                  No. 19-11225


 consider the totality of the circumstances, including the extent of any
 variance from the Guidelines range, . . . to determine whether, as a matter of
 substance, the sentencing factors in [§] 3553(a) support the sentence.”
 United States v. Gerezano-Rosales, 692 F.3d 393, 400 (5th Cir. 2012) (first
 alteration in original) (internal quotation marks and citations omitted). That
 said, we “must give due deference to the district court’s decision that the
 § 3553(a) factors, on a whole, justify the extent of the variance”. Broussard,
 669 F.3d at 551 (citation omitted).
        The record at hand does not show the court failed to account for a
 significant sentencing factor, relied too heavily on an irrelevant or improper
 sentencing factor, or clearly erred in balancing sentencing factors. See id.
 (citation omitted). Accordingly, Martin’s challenge amounts to a request for
 our court to reweigh the § 3553(a) factors, which we will not do given the
 district court’s “superior position to find facts and judge their import under
 § 3553(a) with respect to a particular defendant”. United States v. Campos-
 Maldonado, 531 F.3d 337, 339 (5th Cir. 2008) (per curiam) (citation omitted);
 see also United States v. Malone, 828 F.3d 331, 342 (5th Cir. 2016) (“Though
 Appellant[] may disagree with how the district court balanced the § 3553(a)
 factors, [his contention] that these factors should have been weighed
 differently is not a sufficient ground for reversal.” (citations omitted)).
 Additionally, the totality of the circumstances, including the extent of the
 variance (five months) and the § 3553(a) factors identified by the court
 (particularly the scope of Martin’s criminal history, including his violent
 criminal history), support the sentence. See Gerezano-Rosales, 692 F.3d at
 400 (citations omitted).
        AFFIRMED.




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