     Case: 11-51215     Document: 00511903708         Page: 1     Date Filed: 06/28/2012




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

                                                                            FILED
                                                                           June 28, 2012
                                     No. 11-51215
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JUAN TORRES-FLORES,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:11-CR-180-1


Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
        Juan Torres-Flores (Torres) appeals the 65-month sentence imposed by the
district court following his guilty plea conviction of illegal reentry of the United
States following removal. He first argues that the sentence, which was an
upward variance from the advisory guideline range, was procedurally
unreasonable because the district court did not provide a sufficient explanation
and gave no prior notice that it was considering an upward variance.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-51215    Document: 00511903708      Page: 2    Date Filed: 06/28/2012

                                  No. 11-51215

      Sentences are reviewed for reasonableness in light of the sentencing
factors in 18 U.S.C. § 3553(a). United States v. Mares, 402 F.3d 511, 519-20 (5th
Cir. 2005). Pursuant to Gall v. United States, 552 U.S. 38 (2007), we engage in
a bifurcated review process of the sentence imposed by the district court. United
States v. Delgado-Martinez, 564 F.3d 750, 752 (5th Cir. 2009). We first “ensure
that the district court committed no significant procedural error, such as . . .
failing to adequately explain the chosen sentence—including an explanation for
any deviation from the Guidelines range.” Gall 552 U.S. at 51. If there is no
procedural error or the error is harmless, we may proceed to the second step and
review the substantive reasonableness of the sentence imposed for an abuse of
discretion. Delgado-Martinez, 564 F.3d at 751-53.
      When imposing a variance, after determining the proper sentence based
upon the § 3553(a) factors, the district court is required only to “adequately
explain the chosen sentence to allow for meaningful appellate review and to
promote the perception of fair sentencing.” Gall, 552 U.S. at 50. The district
court made clear that it had determined that a variance from the guideline range
was warranted because Torres was a danger to the public and that deterrence
was required. The district court noted in this regard that Torres had a previous
conviction for attempted kidnaping as well as two convictions for burglary of a
building and that Torres had been deported on three occasions. In view of the
foregoing, the district court adequately explained its sentence, see id., and Torres
has not shown error. Torres’s contention that the district court procedurally
erred by varying from the guideline range without providing prior notice is
without merit. See Irizarry v. United States, 553 U.S. 708, 716 (2008).
      Torres also contends that his sentence was excessive. He asserts that the
same convictions that were used to calculate his criminal history and his offense
level were cited by the district court to justify the upward variance. In reviewing
the substantive reasonableness of the sentence, we consider “the totality of the
circumstances, including the extent of any variance from the Guidelines range”

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                                  No. 11-51215

and “must give due deference to the district court’s decision that the § 3553(a)
factors, on a whole, justify the extent of the variance.” Gall, 552 U.S. at 51.
      In imposing an upward variance, it was not unreasonable for the district
court to rely on factors that were already accounted for in the guideline range.
See United States v. Williams, 517 F.3d 801, 811 (5th Cir. 2008). Torres’s
argument does not show that the district court’s non-guidelines sentence
unreasonably failed to reflect the statutory sentencing factors. See United States
v. Smith, 440 F.3d 704, 708 (5th Cir. 2006). Rather, his complaints amount to
a mere disagreement with the weight the district court gave to the various
sentencing factors and thus are insufficient to warrant reversal. See Gall, 552
U.S. at 51. Torres has not shown that the 65-month sentence, which was eight
months above the upper end of the advisory guideline range, was substantively
unreasonable.
      AFFIRMED.




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