     Case: 16-11659      Document: 00514086822         Page: 1    Date Filed: 07/25/2017




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

                                    No. 16-11659
                                                                                    Fifth Circuit

                                                                                  FILED
                                  Summary Calendar                            July 25, 2017
                                                                             Lyle W. Cayce
UNITED STATES OF AMERICA,                                                         Clerk


                                                 Plaintiff-Appellee

v.

DAVID CHAVEZ-DELGADO, also known as Andres Chavez-Delgado,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 6:16-CR-17-1


Before BENAVIDES, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM: *
       David Chavez-Delgado appeals his 36-month above-guidelines sentence
imposed following his guilty plea to being found unlawfully present in the
United States following his deportation.            He argues that his sentence is
substantively unreasonable because a guidelines range sentence would have
been sufficient to meet the goals of the sentencing factors in 18 U.S.C.
§ 3553(a).


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-11659

      Chavez-Delgado did not object to the substantive reasonableness of the
sentence in the district court and, therefore, review is for plain error. To show
plain error, Chavez must show a forfeited error that is clear or obvious and
that affects his substantial rights. See Puckett v. United States, 556 U.S. 129,
135 (2009). If he 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. See id.
      In reviewing a non-guidelines sentence for substantive reasonableness,
this court considers “the totality of the circumstances, including the extent of
any variance from the Guidelines range.” United States v. Brantley, 537 F.3d
347, 349 (5th Cir. 2008) (internal quotation marks and citation omitted). A
non-guidelines sentence unreasonably fails to reflect the statutory sentencing
factors set forth in § 3553(a) where 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). The district court must make an individualized assessment of
the particular facts in the case. Gall v. United States, 552 U.S. 38, 50-51
(2007).
      The district court adopted the undisputed findings in the presentence
report and heard the mitigating arguments made by Chavez’s counsel. It
stated that it had considered the § 3553(a) factors and determined that an
upward variance was warranted in light of Chavez’s personal history and
characteristics, including his criminal history, the need for adequate
punishment and deterrence, and to provide protection to the public.          The
district court’s reasons for imposing an upward variance were fact-specific and
consistent with the § 3553(a) factors. Gall, 552 U.S. at 50-51. The record does



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                                No. 16-11659

not reflect that the district court failed to take into account any factor that
warranted significant weight or that it gave undue weight to an improper
factor. See Smith, 440 F.3d at 708.
      Insofar as Chavez argues that the extent of the variance is unreasonable,
this court has upheld greater and similar upward variances. See, e.g., United
States v. Herrera-Garduno, 519 F.3d 526, 531-32 (5th Cir. 2008); United States
v. Mendez-Murillo, 670 F. App’x 215, 216 (5th Cir. 2016).
      Chavez has not demonstrated that the district court plainly erred in
making the upward variance or that the sentence is substantively
unreasonable. See Puckett, 556 U.S. at 135; Smith, 440 F.3d at 708. The
sentence is AFFIRMED.




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