     Case: 15-51051      Document: 00513864536         Page: 1    Date Filed: 02/06/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fif h Circuit
                                    No. 15-51051                                  FILED
                                  Summary Calendar                          February 6, 2017
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

PABLO FELIPE-DIEGO,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 4:15-CR-260-1


Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM: *
       Pablo Felipe-Diego appeals the 37-month, above-guidelines sentence
imposed following his guilty plea conviction for illegal reentry in violation of 8
U.S.C. § 1326. He argues that his sentence is substantively unreasonable. He
asserts that the district court placed too much weight on his prior sentence for
illegal reentry and that it failed to consider his incentive to return to his family
in the United States as mitigating evidence.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-51051     Document: 00513864536     Page: 2   Date Filed: 02/06/2017


                                  No. 15-51051

      The record supports that the district court had an adequate basis for the
sentence imposed and was guided by the 18 U.S.C. § 3553(a) factors in deciding
that an upward variance was warranted, particularly finding that a non-
guidelines sentence addressed Felipe-Diego’s criminal history, which included
several convictions that did not receive criminal history points in the
presentence report.     Its written statement of reasons cited several of the
§ 3553(a) factors, including the history and characteristics of Felipe-Diego, the
need to promote respect for the law, and the goal of protecting the public from
further crimes by him. Thus, the district court’s reasons for imposing an
upward variance were fact-specific and consistent with the § 3553(a) factors.
See United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006); see also United
States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008).
      Nothing in the record suggests that the district court did not account for
a factor that should have received significant weight, gave significant weight
to an improper or irrelevant factor, or made a clear error of judgment in
balancing the sentencing factors. See Smith, 440 F.3d at 708. To the extent
that Felipe-Diego seeks to have this court reweigh those factors, we will not do
so. See Gall v. United States, 552 U.S. 38, 51 (2007). Felipe-Diego offers
nothing more than conjecture when he argues that his previous sentence for
illegal reentry may have been based on an erroneous guidelines calculation
and therefore should not have been relied upon by the district court in
sentencing him.      Similarly, his contention that the district court did not
consider mitigating evidence is unavailing given the record in this case.
      The judgment of the district court is AFFIRMED.




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