       Case: 17-10162     Document: 00514208195         Page: 1     Date Filed: 10/24/2017




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

                                     No. 17-10162
                                                                                   Fifth Circuit

                                                                                 FILED
                                   Summary Calendar                       October 24, 2017
                                                                            Lyle W. Cayce
UNITED STATES OF AMERICA,                                                        Clerk


                                                  Plaintiff - Appellee

v.

FRANCISCO GALLEGOS-MEDRANO,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 5:16-CR-37-1


Before JONES, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM: *
        Francisco Gallegos-Medrano contests his 60-month, above-Guidelines
sentence, stemming from his guilty-plea conviction for illegal reentry after
deportation, in violation of 8 U.S.C. § 1326, and 6 U.S.C. §§ 202(3), 202(4), &
557.     He challenges only the substantive reasonableness of his 60-month
sentence.




        *Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 17-10162     Document: 00514208195      Page: 2   Date Filed: 10/24/2017


                                  No. 17-10162

      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).
      Gallegos asserts: his sentence is substantively unreasonable because the
court imposed an upward variance 33 months greater than his advisory 21-to-
27-months Guidelines sentencing range; his sentence was greater than
necessary to achieve the goals set forth in 18 U.S.C. § 3553(a); and the upward
variance reflected a clear error of judgment in balancing the sentencing factors.
For the following reasons, after reviewing the substantive reasonableness of
Gallegos’ sentence under the requisite deferential abuse-of-discretion
standard, there was no error. E.g., Gall, 552 U.S. at 51.
      The court referenced specific facts, and provided specific reasons,
consistent with the § 3553(a) sentencing factors, why a sentence outside the
Guidelines sentencing range was warranted. The court focused on Gallegos’
substantial criminal history.       For example, notwithstanding Gallegos’
assertions his criminal history was “based on two incidents, that were mostly
misdemeanors”, the court noted Gallegos had three prior federal convictions
related to illegal reentry, and five DWI convictions. The court also stated the
upward variance was warranted, inter alia, to promote respect for the law,
provide just punishment for the offense, and afford adequate deterrence.



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    Case: 17-10162     Document: 00514208195     Page: 3   Date Filed: 10/24/2017


                                  No. 17-10162

      Nothing suggests the court did not account for a factor that should have
received significant weight or made a clear error of judgment in balancing the
sentencing factors. United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006).
And, we defer to the court’s determination the § 3553(a) factors, on the whole,
justify the upward variance, United States v. Broussard, 669 F.3d 537, 551 (5th
Cir. 2012), which is similar to other variances previously affirmed by this court,
e.g., United States v. Brantley, 537 F.3d 347, 348–50 (5th Cir. 2008) (affirming
sentence of 120 months’ imprisonment with a 41-to-51-months Guidelines
sentencing range). Given that Gallegos was removed on four prior occasions
and had already been sentenced to a total of 40 months’ imprisonment for
offenses related to illegal reentry, it was not unreasonable for the court to
conclude a sentence within the advisory sentencing range of 21–27 months’
imprisonment would not serve as adequate deterrence or promote respect for
the law.
      AFFIRMED.




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