     Case: 15-50746      Document: 00513423211         Page: 1    Date Filed: 03/14/2016




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

                                    No. 15-50746
                                                                                    Fifth Circuit

                                                                                  FILED
                                  Summary Calendar                          March 14, 2016
                                                                             Lyle W. Cayce
UNITED STATES OF AMERICA,                                                         Clerk


                                                 Plaintiff-Appellee

v.

OSCAR MARIO GONZALEZ-FLORES,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:15-CR-562-1


Before HIGGINBOTHAM, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Oscar Mario Gonzalez-Flores (Gonzalez) pleaded guilty to being
unlawfully present in the United States following removal, and the district
court sentenced him above the guidelines range to the statutory maximum
sentence of 24 months of imprisonment and one year of supervised release. He
argues that his sentence was substantively unreasonable because it was
greater than necessary to meet the goals of sentencing. He acknowledges that


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-50746       Document: 00513423211          Page: 2     Date Filed: 03/14/2016


                                       No. 15-50746

it was proper for the district court to consider his criminal history in its
sentencing decision, but he argues that the sentence was greater than
necessary because his criminal history was part of the guidelines sentence
range calculation. He maintains that while the district court believed that the
facts underlying his prior aggravated assault conviction were egregious, the
state court was in a better position to make that determination, and the state
court sentenced him to probation. He further contends that the presentence
report contained a possible ground for a downward departure due to the danger
he faced in Mexico from the Zetas drug cartel, implying that this factor was
not sufficiently considered by the district court. According to Gonzalez, a
sentence of time served would have been sufficient.
       Conceding that he did not object to the substantive reasonableness of the
sentence, Gonzalez argues that such an objection is not required to preserve
the substantive reasonableness of a sentence for review; he acknowledges that
this argument is foreclosed by circuit precedent and raises the issue to preserve
it for further review. 1 Accordingly, we review the substantive reasonableness
of the sentence for plain error. See United States v. Peltier, 505 F.3d 389, 391-
92 (5th Cir. 2007). Under the plain error standard, Gonzalez must show a clear
or obvious forfeited error that affected his substantial rights. See Puckett v.
United States, 556 U.S. 129, 135 (2009). If Gonzalez makes such a showing,
we have discretion to correct the error but should do so only if the error
seriously affects the fairness, integrity, or public reputation of the proceedings.
See id.
       According to the facts set forth in the presentence report, which Gonzalez
does not contest, Gonzalez was arrested for his prior aggravated assault


       1 Because we hold that Gonzalez’s sentence was substantively reasonable and thus
that the district court did not err, let alone plainly err, our resolution of this case would be
no different under the abuse-of-discretion standard advocated by Gonzalez.


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                                 No. 15-50746

offense while he was loading a shotgun after pointing it at two different people.
Thus, the district court’s determination that the facts of that offense were
egregious was supported by the record.       While the state court sentenced
Gonzalez to probation, it was permissible for the district court to consider that
Gonzalez had previously received a lenient sentence in making its sentencing
determination. See United States v. Lee, 358 F.3d 315, 328-29 (5th Cir. 2004).
While Gonzalez argues that the district court failed to balance the mitigating
factor of the danger to him in Mexico, there is no requirement that a sentencing
court accord a certain mitigating factor dispositive weight. See United States
v. Lopez-Velasquez, 526 F.3d 804, 807 (5th Cir. 2008).
      In pronouncing sentence, the district court specifically referenced the
sentencing factors of deterrence and protection of the public, and it explained
how they applied based upon the facts of the case. Thus, the district court’s
reasons for the sentence were fact-specific and consistent with the 18 U.S.C.
§ 3553(a) sentencing factors. See United States v. Smith, 440 F.3d 704, 707
(5th Cir. 2006). The district court’s application of an upward departure based
upon Gonzalez’s criminal history and the lenient sentence he previously
received was not unreasonable. See United States v. Brantley, 537 F.3d 347,
350 (5th Cir. 2008); Lee, 358 F.3d at 328-29. Furthermore, the amount of the
variance, 17 months above the top of the guidelines range, was not
unreasonable. See United States v. McElwee, 646 F.3d 328, 345 (5th Cir. 2011).
As Gonzalez has not shown his sentence was unreasonable, he cannot show
plain error. See Peltier, 505 F.3d at 391.
      AFFIRMED.




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