     Case: 12-41303       Document: 00512386120         Page: 1     Date Filed: 09/25/2013




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

                                                                            FILED
                                                                        September 25, 2013
                                     No. 12-41303
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

HECTOR VILLARREAL,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 5:09-CR-2708-1


Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM:*
       Hector Villarreal appeals the concurrent 80-month prison sentences
imposed following his guilty plea convictions for conspiracy to possess with
intent to distribute marijuana and possession with intent to distribute
marijuana. He first contends that the district court erred by refusing to award
the third-level reduction for acceptance of responsibility under United States
Sentencing Guidelines § 3E1.1(b) based on the Government’s failure to move for
the reduction because he refused to waive his right of appeal. As Villarreal

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-41303

concedes, this argument is foreclosed by United States v. Newson, 515 F.3d 374,
376-79 (5th Cir. 2008).
      Next, Villarreal argues that the district court committed procedural error
by relying on improper factors in imposing sentences above his advisory
guidelines range and by failing to justify its reliance on those factors.
Specifically, he contends that, contrary to the policy statements of the United
States Sentencing Commission set forth in § 5H1.1, § 5H1.2, § 5H1.5, and
§ 5H1.6, the district court improperly relied on his age, vocational skills,
employment record, and family ties and responsibilities in making its sentencing
decision and, then, compounded the error by failing to explain why these
prohibited factors were so important that the policy statements should not apply.
      Villarreal did not object to his sentences on these grounds in the district
court; therefore, the plain error standard of review applies. See United States
v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009). To prevail, he 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). When these
elements are shown, this court has the discretion to correct the error but only if
it “seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings.” Id. (internal quotation marks and citation omitted).
      Even if it were assumed that the district court relied on Villarreal’s age,
vocational skills, employment record, and family ties and responsibilities in
making its sentencing decision, there was no clear or obvious error. Cf. United
States v. Simmons, 568 F.3d 564, 567-69 (5th Cir. 2009) (holding that a sentence
is procedurally unreasonable where a district court limits its own discretion by
failing to consider whether its disagreement with a policy statement warrants
a variance sentence). In any event, the record does not support Villarreal’s
contentions. Accordingly, his arguments of procedural error are unavailing.
      Finally, Villarreal argues that his sentences are unreasonable because the
district court relied on improper factors, that the record does not support the

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                                  No. 12-41303

district court’s decision to impose upward variance sentences, and that the court
should have instead imposed downward variances to compensate for the
Government’s failure to move for the additional one-point reduction of his
offense level.
      This court reviews “the reasonableness of a sentence for abuse of
discretion, whether it is inside or outside the guidelines range.” United States
v. Hernandez, 633 F.3d 370, 375 (5th Cir.) (citing Gall v. United States, 552 U.S.
38, 51 (2007)), cert. denied, 131 S. Ct. 3006 (2011). To determine the substantive
reasonableness of a sentence, we consider “the totality of the circumstances,
granting deference to the district court’s determination of the appropriate
sentence based on the [18 U.S.C.] § 3553(a) factors.” United States v. McElwee,
646 F.3d 328, 337 (5th Cir. 2011) (internal quotation marks and citations
omitted). If a district court deviates from the guidelines range, we defer to the
district court’s determination that the § 3553(a) factors warrant the extent of the
variance. Id. A significant deviation does not constitute an abuse of discretion
if it is “commensurate with the individualized, case-specific reasons provided by
the district court.” Id. at 338 (internal quotation marks and citation omitted).
A variance sentence unreasonably fails to reflect the statutory sentencing factors
set forth in § 3553(a) 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).
      For the reasons noted above, Villarreal’s arguments of procedural error do
not demonstrate reversible plain error and, thus, also do not support his
argument of substantive unreasonableness. In a detailed explanation of its
sentencing decision, the district court made an individualized assessment and
considered the advisory guidelines range, the applicable statutory penalty, the
facts set forth in the presentence report, the arguments made by the parties,
Villarreal’s statement on his own behalf, and the sentencing factors of § 3553(a).

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In particular, the court emphasized the need for Villarreal’s sentences to reflect
the seriousness of his instant offenses, promote respect for the law, deter future
criminal conduct, and protect the public. Although the variance in this case was
17 months above the top of Villarreal’s advisory guidelines range, it was not
unreasonable. See McElwee, 646 F.3d at 344-45; United States v. Saldana, 427
F.3d 298, 315-16 (5th Cir. 2005).
      Given the significant deference due to a district court’s consideration of the
§ 3553(a) factors and the court’s reasons for its sentencing decision, Villarreal
has not demonstrated that his sentences are substantively unreasonable. See
Gall, 552 U.S. at 50-53; McElwee, 646 F.3d at 346-47.
      The judgment of the district court is AFFIRMED.




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