     Case: 15-10219      Document: 00513326610         Page: 1    Date Filed: 12/31/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-10219
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        December 31, 2015
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

JUAN PEREZ-VITAL,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:14-CR-203-1


Before HIGGINBOTHAM, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Juan Perez-Vital (Perez) appeals his 30-month, above-guidelines
sentence of imprisonment following his guilty plea to illegal reentry into the
United States following previous deportation. Perez argues that the 30-month
sentence is substantively unreasonable because the district court failed to
account for a factor that should have received significant weight and gave
significant weight to an irrelevant or improper factor.              Specifically, Perez


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-10219

contends that the district court erred in basing the upward variance on its
determination that a prior 24-month sentence for illegal reentry had not
deterred his criminal activity. He argues the court should not have relied on
that sentence because it was based on an eight-level, aggravated felony
enhancement pursuant to U.S.S.G. § 2L1.2, which is no longer applicable
following Lopez v. Gonzales, 549 U.S. 47 (2006).
      The record reflects that the district court properly considered the 18
U.S.C. § 3553(a) factors. See United States v. Gerezano-Rosales, 692 F.3d 393,
400 (5th Cir. 2012). The district court listened to Perez’s argument that the
prior sentence was improperly calculated, but the court was disturbed by
Perez’s four illegal reentries and the failure of the previous sentence to deter
him. The district court further noted that Perez had two prior DWI convictions
and a conviction for simple possession. The district court did acknowledge that
Perez’s criminal history was not “as bad as some people’s” and that the
possession conviction was dated. The district court, nevertheless, determined
that an upward variance was appropriate based on the nature and
circumstances of the offense, the seriousness of the offense, and the need to
deter Perez and to protect the public. The district court did not fail to account
for a factor that should have received significant weight and did not assign
significant weight to an improper factor or make a clear error in balancing the
sentencing factors. See United States v. Smith, 440 F.3d 704, 708 (5th Cir.
2006).
      Further, we have upheld much greater upward variances. See United
States v. Key, 599 F.3d 469, 475−76 (5th Cir. 2010); United States v. Brantley,
537 F.3d 347, 348−50 (5th Cir. 2008). To the extent Perez argues the district
court’s reasons for the sentence were insufficient, that argument is without




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                                 No. 15-10219

merit; the court’s justification for the sentence imposed was “fact-specific and
consistent with the sentencing factors.” Smith, 440 F.3d at 707.
      AFFIRMED.




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