     Case: 19-40368       Document: 00515251726         Page: 1     Date Filed: 12/30/2019




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


                                     No. 19-40368                            FILED
                                                                     December 30, 2019
                                   Summary Calendar
                                                                        Lyle W. Cayce
                                                                             Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

AGUSTIN MARTINEZ-LOPEZ, also known as Agustin Martinez, also known
as Agustin L. Martinez, also known as Augustin Lopez Martinez,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 2:18-CR-1421-1


Before BARKSDALE, HAYNES, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Agustin Martinez-Lopez challenges his above-Guidelines sentence of,
inter alia, 36-months’ imprisonment imposed following his guilty-plea
conviction for illegal reentry after deportation, in violation of 8 U.S.C. § 1326(a)
and (b)(2). He asserts his sentence was substantively unreasonable because
the court made a clear error in judgment by considering the nature of his prior



       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 19-40368     Document: 00515251726      Page: 2   Date Filed: 12/30/2019


                                  No. 19-40368

state-court conviction and giving undue weight to the need to protect the public
and to deter future criminal conduct.
      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, 46, 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).
      As noted, Martinez does not claim procedural error, only that his
sentence is substantively unreasonable. In that regard, his above-Guidelines
sentence is substantively unreasonable if 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) (citations omitted).
      The presentence investigation report, taking into account Martinez’
prior-aggravated-felony offense of indecency with a child, recommended a
Guidelines sentencing range of 15- to 21-months’ imprisonment. Stating it had
considered Martinez’ criminal history, the need to protect the public (especially
children), and the need to deter future criminal conduct, the court varied
upward and sentenced Martinez to, inter alia, 36-months’ imprisonment, to
which Martinez objected.




                                        2
    Case: 19-40368    Document: 00515251726     Page: 3   Date Filed: 12/30/2019


                                 No. 19-40368

      Martinez has not asserted the court failed to consider the 18 U.S.C.
§ 3553(a) sentencing factors or included an irrelevant or improper factor.
Along that line, both the need to protect the public and the need to deter future
criminal conduct are proper factors to be considered in sentencing. See 18
U.S.C. § 3553(a). Martinez’ challenge is simply a disagreement with the court’s
balancing of the § 3553(a) factors and does not show an abuse of discretion.
      AFFIRMED.




                                       3
