     Case: 14-11340      Document: 00513178945         Page: 1    Date Filed: 09/02/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-11340
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        September 2, 2015
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

SANTIAGO DIAZ-HERNANDEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 6:14-CR-28-1


Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
       Santiago Diaz-Hernandez pleaded guilty, pursuant to a plea agreement,
to illegally reentering the United States after he had been deported. He now
challenges his 60-month, above-guidelines prison sentence as substantively
unreasonable. Specifically, Diaz-Hernandez contends that the district court
failed to take into account that he returned to the United States to help care
for his children, both of whom suffer from mental illness and one of whom


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-11340      Document: 00513178945    Page: 2   Date Filed: 09/02/2015


                                  No. 14-11340

requires constant supervision, and to help his wife, who also suffers from
mental illness. He urges that the court overemphasized his criminal history,
which, in his view is not sufficiently serious to justify the extent of the upward
variance. Our review is for abuse of discretion. Gall v. United States, 552 U.S.
38, 51 (2007).
      The district court heard Diaz-Hernandez’s arguments in mitigation of
his sentence. It simply determined, as it was permitted to do, that the factors
Diaz-Hernandez raised did not overcome other sentencing considerations. The
district court assessed the facts and provided specific reasons consistent with
the 18 U.S.C. § 3553(a) factors as to why a sentence outside of the guidelines
range was necessary to achieve the goals of sentencing. See United States v.
Smith, 440 F.3d 704, 707 (5th Cir. 2006). The court cited several of those
factors to support the sentence and was particularly concerned that Diaz-
Hernandez had four prior convictions that were not taken into account in
determining the advisory guidelines range.        Diaz-Hernandez’s arguments
amount to a disagreement with the balance among the sentencing factors that
the district court struck, but this court will not reweigh those factors. See
United States v. McElwee, 646 F.3d 328, 344-45 (5th Cir. 2011). Nothing
suggests, as Diaz-Hernandez asserts, that the district court did not account for
a factor that should have received significant weight or made a clear error of
judgment in balancing the sentencing factors. See Smith, 440 F.3d at 708. The
60-month sentence was reasonable under the “totality of the circumstances.”
Gall, 552 U.S. at 51.
      Accordingly, the district court’s judgment is AFFIRMED.




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