     Case: 15-51008      Document: 00513664038         Page: 1    Date Filed: 09/02/2016




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

                                    No. 15-51008                                    FILED
                                  Summary Calendar                           September 2, 2016
                                                                               Lyle W. Cayce
                                                                                    Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

IGNACIO SEDANO-VILLAFUERTE,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:14-CR-1599-1


Before BARKSDALE, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Ignacio Sedano-Villafuerte pleaded guilty to illegal reentry following
deportation, in violation of 8 U.S.C. § 1326. He was sentenced, inter alia, to 48
months’ imprisonment.            The sentence was above the recommended
imprisonment range under the advisory Sentencing Guidelines of 24 to 30
months, but the court concluded that range was inadequate in the light of
Sedano’s uncounted criminal history.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                    No. 15-51008

      Sedano       contends   his   above-guideline   sentence   is   substantively
unreasonable and greater than necessary to achieve the goals of 18 U.S.C.
§ 3553(a). He points out that all of his prior criminal convictions were remote
in time and, for the most part, resulted in low sentences. He claims his
criminal history was the product of many years of substance abuse, and, as
pointed out at sentencing, he is no longer abusing drugs. Additionally, he had
stayed out of the United States for nearly 15 years following his last removal.
      Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still properly calculate the Guideline-sentencing range for use in deciding on
the sentence to impose. Gall v. United States, 552 U.S. 38, 48–51 (2007). 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). As
noted, procedural error is not claimed.
      As stated above, if the sentence is procedurally sound, the court
considers the substantive reasonableness of the sentence under a deferential
abuse-of-discretion standard. Concerning the sentencing factors provided in
the above-referenced § 3553(a), a non-guideline sentence will be found
substantively unreasonable when it “(1) does not account for a factor that
should have received significant weight, (2) gives significant weight to an
irrelevant or improper factor, or (3) represents a clear error of judgment in
balancing the sentencing factors.” United States v. Smith, 440 F.3d 704, 708
(5th Cir. 2006).
      With respect to the substantive reasonableness of the sentence, nothing
in the record suggests the court did not account for a factor that should have



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                                  No. 15-51008

received significant weight, gave significant weight to an improper or
irrelevant factor, or made a clear error of judgment in balancing the sentencing
factors. See id. It found the guideline recommended sentence inadequate
based on Sedano’s extensive unscored criminal history. Our court previously
held “[a] defendant’s criminal history is one of the factors a court may consider
in imposing a non-Guideline sentence”. Id. at 709 (citation omitted). The
district court further explained that a sentence outside of the Guidelines was
warranted in this based on the statutory goals of § 3553(a), particularly,
Sedano’s personal history and characteristics, the need to provide just
punishment for the offense, and the need to afford adequate deterrence to
criminal conduct. See §§ 3553(a)(1), (a)(2)(A), (a)(2)(B).
      AFFIRMED.




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