     Case: 17-40757       Document: 00514394657         Page: 1    Date Filed: 03/20/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                    No. 17-40757                                FILED
                                  Summary Calendar                        March 20, 2018
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

v.

ISMAEL VASQUEZ-FONSECA,

                                                  Defendant-Appellant.


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:16-CR-318-1


Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Ismael Vasquez-Fonseca was convicted, pursuant to his guilty plea, of
illegal re-entry into the United States following removal. He was sentenced
above the Guidelines range to 30 months of imprisonment. Vasquez-Fonseca
now challenges his sentence, contending that the district court erred by
imposing a sentence above the applicable Guidelines range. We AFFIRM.




       * Pursuant to Fifth 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should not be published and is not precedent except under the limited circumstances set forth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 Fifth Circuit Rule 47.5.4.
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                                       No. 17-40757

       At sentencing, the district court imposed an upward variance 1 based on
several of the 18 U.S.C. § 3553(a) factors, including Vasquez-Fonseca’s extreme
behavior and dismissed or uncharged conduct; the need to promote respect for
the law; the need to deter Vasquez-Fonseca from future criminal behavior; and
the need to protect the public. In discussing the § 3553(a) factors, the district
court expressed concern over Vasquez-Fonseca’s prior repeated re-entries into
the United States, which culminated in several deportations or removals.
Because of these repeated re-entries and the § 3553(a) factors, the district
court imposed an above-Guidelines sentence of 30 months in custody without
supervised release.
       Because Vasquez-Fonseca did not object to his sentence, we review for
plain error. See United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008).
To demonstrate plain error, Vasquez-Fonseca must show a forfeited error that
is clear or obvious and that affects his substantial rights. See Puckett v. United
States, 556 U.S. 129, 135 (2009). If he makes such a showing, we have the
discretion to correct the error, but only if it “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.”                 See id. (citation
omitted).
       Vasquez-Fonseca argues that the district court erred by imposing a non-
Guidelines sentence based on the conclusion that his criminal-history category
under the Guidelines did not appropriately reflect the gravity of his multiple
prior arrests and convictions. According to Vasquez-Fonseca, the district court



       1  Vasquez-Fonseca is incorrect in referring to his sentence as an upward departure,
as it is clear from the record that the district court imposed an upward variance from the
Guidelines range. See United States v. Smith, 440 F.3d 704, 706–07 (5th Cir. 2006). Prior
arrests cannot be the sole basis for an upward departure. See United States v. Jones, 444
F.3d 430, 434 (5th Cir. 2006). However, we have upheld an upward variance pursuant to 18
U.S.C. § 3553(a) that was based in part on a consideration of prior arrests. See United States
v. Lopez-Velasquez, 526 F.3d 804, 807 (5th Cir. 2008).


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                                 No. 17-40757

impermissibly considered prior arrests that did not result in convictions in
order to enhance his sentence.
      In Lopez-Velasquez, 526 F.3d 804 (5th Cir. 2008), we held that the
district court did not abuse its discretion in considering the defendant’s 11
prior arrests when upwardly varying from the Guidelines range pursuant to
§ 3553(a). 526 F.3d at 807.      Moreover, “[i]t is well-established that prior
criminal conduct not resulting in a conviction may be considered by the
sentencing judge.” Id. Here, the district court based the upward variance not
only on a § 3553(a) consideration of Vasquez-Fonseca’s unprosecuted illegal re-
entries but also on other § 3553(a) factors such as deterrence from further
criminal conduct and the protection of the public. Vasquez-Fonseca fails to
demonstrate that the district court clearly or obviously erred by considering
information in the PSR regarding prior unprosecuted criminal conduct. See id.
      To the extent that Vasquez-Fonseca argues that a lesser sentence would
have been sufficient to satisfy the sentencing objectives of § 3553(a)(2), his
contention amounts to a request for a re-weighing of the sentencing factors.
This we will not do. See United States v. McElwee, 646 F.3d 328, 343–44 (5th
Cir. 2011). In addition, although Vasquez-Fonseca’s sentence is 16 months
above the top of the advisory Guidelines range, we have upheld greater
variances. See, e.g., United States v. Key, 599 F.3d 469, 471, 475–76 (5th Cir.
2010); United States v. Jones, 444 F.3d 430, 433, 441–42 (5th Cir. 2006).
Accordingly, under the totality of the circumstances and given the significant
deference due a district court’s consideration of the § 3553(a) factors, Vasquez-
Fonseca has failed to demonstrate that the non-Guidelines sentence imposed
constitutes error—whether plain or otherwise. See Puckett, 556 U.S. at 135;
McElwee, 646 F.3d at 337, 344; Brantley, 537 F.3d at 349.
      AFFIRMED.



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