     Case: 11-20544     Document: 00511869401         Page: 1     Date Filed: 05/29/2012




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

                                                                            FILED
                                                                           May 29, 2012
                                     No. 11-20544
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

CARLOS BONILLA-PONCE, also known as Carlos Roberto Bonilla Ponce, also
known as Carlos Bonilla Ponce, also known as Carlos Roberto Bonilla-Ponce,
also known as Carlos Bonilla, also known as Hector Juarez Leiba,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:11-CR-168-1


Before BENAVIDES, STEWART, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        Carlos Bonilla-Ponce pleaded guilty, without the benefit of a plea
agreement, to being unlawfully present in the United States after having been
deported. His advisory guidelines sentencing range was 15 to 21 months of
imprisonment, but the court imposed a 33-month sentence, explaining that
Bonilla-Ponce received lenient sentences for his two previous illegal reentries


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-20544

but, despite promises that he would not reenter, he continued to flout the
immigration laws. Bonilla-Ponce challenges the sentence as substantively
unreasonable. Generally, this court reviews a sentence for reasonableness under
an abuse of discretion standard, taking into account the totality of the
circumstances. See Gall v. United States, 552 U.S. 38, 51 (2007); United States
v. Mondragon-Santiago, 564 F.3d 357, 360 (5th Cir. 2009). The Government
argues, however, that plain error review should apply, contending that
Bonilla-Ponce’s objection in the district court was insufficient to preserve the
issue for appellate review. However, we need not decide which standard of
review applies because Bonilla-Ponce cannot succeed even under the more
lenient abuse of discretion standard. See United States v. Rodriguez, 523 F.3d
519, 525 (5th Cir. 2008).
      Where a district court varies upward from the guidelines range, this court
must determine whether the sentence “unreasonably fails to reflect” the 18
U.S.C. § 3553(a) sentencing factors. United States v. Smith, 440 F.3d 704, 708
(5th Cir. 2006). An above-guidelines sentence is unreasonable if it either “(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. We also
consider the extent of the variance from the guidelines range. United States v.
Brantley, 537 F.3d 347, 349 (5th Cir. 2008).
      Bonilla-Ponce’s argument that his criminal history score accounted for his
past crimes and recidivism fails because the score did not take into account that
he continued to illegally reenter the country despite his promises not to do so
and despite the fact that lenient sentences had not deterred him. In any event,
a district court may vary upward based on factors already considered by the
guidelines. See United States v. Williams, 517 F.3d 801, 810-12 (5th Cir. 2008).
As for his suggestion that his state and immigration detentions should have
operated to reduce his sentence and his argument that the district court

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                                 No. 11-20544

overstated the seriousness of his offense, these complaints amount to a mere
disagreement with the weight the district court gave to the various sentencing
factors and thus are insufficient to warrant reversal. See Gall, 552 U.S. at 51
(explaining that appellate courts will not reweigh the sentencing factors). Even
if, as Bonilla-Ponce suggests, a shorter sentence would have been sufficient to
deter him, that is insufficient to warrant reversal given the wide discretion of
the district court. United States v. York, 600 F.3d 347, 361-62 (5th Cir. 2010).
Finally, though Bonilla-Ponce argues generally that his sentence was disparate
from those of similar offenders, this argument fails because he provides no
information about particular aggravating or mitigating facts concerning any
other defendant. See United States v. Willingham, 497 F.3d 541, 544 (5th Cir.
2007).
      Although the sentence represents a substantial increase from the
guidelines range, the district court was in the best position to judge
Bonilla-Ponce and the circumstances of the offense, and the reasons given by the
district court sufficiently support the sentence. See Williams, 517 F.3d at
812-13.     The court tied the reasons for its sentence to specific facts and
particular § 3553(a) factors, which were sufficient to justify the extent of the
variance.    The court made an individualized assessment and was free to
conclude, as it did, that in Bonilla-Ponce’s case, the guidelines range gave
insufficient weight to some of the sentencing factors, including the seriousness
of the offense and the need to protect the public and deter Bonilla-Ponce from
continuing to violate the law. See § 3553(a); Williams, 517 F.3d at 809.
      The judgment of the district court is AFFIRMED.




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