     Case: 13-50352      Document: 00512560627         Page: 1    Date Filed: 03/13/2014




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

                                    No. 13-50352                               FILED
                                  Summary Calendar                       March 13, 2014
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

NORMAN OSORTO-GUEVARRA,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:12-CR-1136-1


Before JOLLY, DeMOSS, and ELROD, Circuit Judges.
PER CURIAM: *
       Norman Osorto-Guevarra appeals the 72-month, above-guidelines
sentence imposed by the district court following his guilty plea conviction of
illegal reentry. He argues that the district court procedurally erred by failing
to properly apply U.S.S.G. § 4A1.3 when upwardly departing from the
guidelines and that the sentence is substantively unreasonable because it was
greater than necessary to achieve the sentencing goals set forth in 18 U.S.C.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-50352      Document: 00512560627         Page: 2    Date Filed: 03/13/2014


                                      No. 13-50352

§ 3553(a), particularly when his benign reason for reentry, to be with his
family, is considered.
       This court reviews sentences for reasonableness by engaging in a
bifurcated review. Gall v. United States, 552 U.S. 38, 49-51 (2007); United
States v. Delgado-Martinez, 564 F.3d 750, 752 (5th Cir. 2009). An appellate
court must first ensure that the sentencing court committed no significant
procedural error, including improperly calculating the guidelines range. Gall,
552 U.S. at 51. If there is no procedural error, the appellate court reviews the
substantive reasonableness of the sentence under a deferential abuse of
discretion standard, “tak[ing] into account the totality of the circumstances.”
Id.; United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
However, because Osorto-Guevarra did not object to his sentence on any
grounds, this court reviews for plain error only. 1 See United States v. Peltier,
505 F.3d 389, 391-92 (5th Cir. 2007). To show plain error, the appellant must
show a forfeited error that is clear or obvious and that affects his substantial
rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If the appellant
makes such a showing, this court has the discretion to correct the error but
only if it seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id.
       Osorto-Guevarra refers to his sentence as an upward departure
pursuant to § 4A1.3.        However, the record reflects that the district court
imposed a non-guidelines sentence or variance based on the § 3553(a) factors.
Thus, Osorto-Guevarra’s arguments about the district court’s failure to comply
with § 4A1.3 are inapposite.



       1 Osorto-Guevarra raises to preserve for possible Supreme Court review the argument
that the appropriate standard of review for a challenge to the substantive reasonableness of
a sentence is abuse of discretion.


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                                  No. 13-50352

      With regard to the substantive reasonableness of the sentence, the
district court considered the statements presented at sentencing and the
presentence report and was free to conclude, as it did, that the guidelines range
was inadequate in light of § 3553(a)’s sentencing factors. Specifically, the
district court cited Osorto-Guevarra’s intention to return illegally to the United
States in order to be with his family and the fact that two prior illegal reentry
sentences of 42 months and 69 months had not deterred him from illegally
returning to the United States. The record demonstrates that the district
court’s decision to impose a non-guidelines sentence was based on permissible
factors that advanced the objectives set forth in § 3553(a) and were justified by
the facts of the case. See United States v. Lopez-Velasquez, 526 F.3d 804, 807
(5th Cir. 2008); United States v. Smith, 440 F.3d 704, 708-09 (5th Cir. 2006).
Additionally, the variance does not represent an abuse of the district court’s
vast sentencing discretion when considered in light of the totality of the
circumstances. See Gall, 552 U.S. at 51; United States v. Brantley, 537 F.3d
347, 349 (5th Cir. 2008).
      Accordingly, the district court’s judgment is AFFIRMED




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