     Case: 16-20333       Document: 00514029097         Page: 1     Date Filed: 06/12/2017




           IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT
                                                                              United States Court of Appeals
                                                                                       Fifth Circuit
                                     No. 16-20333                                    FILED
                                   Summary Calendar                              June 12, 2017
                                                                                Lyle W. Cayce
                                                                                     Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

ISAIAS REYNA-REYNA, also known as Isaias Reyna Reyna,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:15-CR-580-1


Before BARKSDALE, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Isaias Reyna-Reyna, a citizen of Mexico, appeals the sentence imposed
following his pleading guilty to, and conviction for, illegally reentering the
United States after having been deported following a felony conviction, in
violation of 8 U.S.C. § 1326(a) and (b)(1).
       Reyna was deported in 1996 following his Texas first-degree-felony
charge for marijuana possession, but illegally returned to the United States in


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 16-20333

1997. He was most recently deported in 2003. He again unlawfully returned
to the United States in 2004, however, and in 2013 was convicted of marijuana
possession in Texas state court and sentenced to three-years’ imprisonment.
While in the custody of Texas law enforcement, Reyna was charged with the
immigration crime at issue here.
      In 2015, he entered his guilty plea, without a plea agreement, and was
transferred into federal custody. His advisory Sentencing Guidelines range
was calculated to be 15 to 21 months’ imprisonment; but the district court
varied upward, sentencing him to, inter alia, 71 months of imprisonment.
      Reyna contends the court committed procedural error by varying upward
based on the sentence imposed for his prior illegal-reentry conviction, and by
failing to consider all the 18 U.S.C. § 3553(a) factors. He also challenges the
substantive reasonableness of his sentence.
      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, 48–51 (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).
      A court commits procedural error if it does not consider the applicable
Guidelines range and all of the § 3553(a) factors, but the court is not required
to recite each factor and explain its applicability. United States v. Diehl, 775




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                                 No. 16-20333

F.3d 714, 723 (5th Cir. 2015).      For the following reasons, there was no
procedural error.
      The record reflects the court calculated the applicable Guidelines range,
and considered Reyna’s contentions for a lesser sentence.        The court also
explained extensively how the sentence accounted for several § 3553(a) factors,
including the nature and circumstances of the offense; Reyna’s age, health,
criminal history, and other characteristics; and the need for the sentence
imposed to reflect the seriousness of the offense, provide just punishment,
afford adequate deterrence to criminal conduct, and protect the public from
further crimes by Reyna.      The court explicitly considered the applicable
Guidelines range, the Guidelines amendments since the time of Reyna’s prior
illegal-reentry conviction in 1998, and the need to provide adequate deterrence
given Reyna’s being undeterred from further criminal conduct by the 71-month
sentence he received for his prior illegal-reentry conviction.
      As another basis for claimed procedural error, Reyna contends his
sentence implicated an unwarranted sentencing disparity. This contention,
even assuming it was preserved in the district court, is unavailing because
Reyna makes only general assertions about the Guidelines ranges of other
defendants and does not provide specific examples of sentences of similarly-
situated defendants. See United States v. Smith, 440 F.3d 704, 709 (5th Cir.
2006).
      As the final basis for claimed procedural error, Reyna asserts the court
erred in speculating Reyna had been involved with drugs beyond marijuana.
The court’s finding Reyna had a history of dealing in “at least” marijuana is
not clearly erroneous, as the record reflects his two prior state marijuana
convictions.




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      Regarding substantive reasonableness, “[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”. Id. at 724. As noted earlier, the court listened to Reyna’s contentions
for a lesser sentence, considered the applicable Guidelines range and the
§ 3553(a) factors, and provided extensive reasons supporting an above-
Guidelines sentence.
      “[T]he sentencing judge is in a superior position to find facts and judge
their import under § 3553(a) with respect to a particular defendant”. United
States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008). “Even a
significant variance from the Guidelines does not constitute an abuse of
discretion if it is commensurate with the individualized, case-specific reasons
provided by the district court.” Diehl, 775 F.3d at 724 (internal quotation
marks and citation omitted).      Reyna has not demonstrated an abuse of
discretion with respect to the substantive reasonableness of his sentence.
      AFFIRMED.




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