     Case: 15-10890      Document: 00513553034         Page: 1    Date Filed: 06/17/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-10890
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            June 17, 2016
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

LUIS ALFONSO PORRAS-CHAVIRA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 5:15-CR-25-1


Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant Luis Alfonso Porras-Chavira pleaded guilty to
illegal reentry after deportation, and the district court sentenced him above
the advisory guidelines range to 48 months of imprisonment. The district court
also imposed a three-year term of supervised release.
       Porras-Chavira notes that the district court imposed a substantively
unreasonable sentence by giving significant weight to an irrelevant or


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-10890

improper factor and by varying upwardly 60% from the guidelines range.
Porras-Chavira notes that the district court incorrectly stated that he had four
prior illegal reentry convictions and then relied on that incorrect fact to impose
his sentence.
       Ordinarily, we review the substantive reasonableness of a sentence,
whether inside or outside of the guidelines range, for abuse of discretion. Gall
v. United States, 552 U.S. 38, 51-52 (2007); United States v. Cisneros-Gutierrez,
517 F.3d 751, 764 (5th Cir. 2008). However, Porras-Chavira failed to raise his
challenge to the district court’s statement that he had four prior illegal reentry
convictions “in a manner that could have placed the district court on notice of
the error he now asserts.” United States v. Dominguez-Alvarado, 695 F.3d 324,
328 (5th Cir. 2012); see also, United States v. Peltier, 505 F.3d 389, 392 (5th
Cir. 2007). 1 We therefore review this issue only for plain error. See id. To
show plain error, Porras-Chavira must demonstrate that there is a clear or
obvious error affecting his substantial rights. See Puckett v. United States, 556
U.S. 129, 135 (2009). If he makes such a showing, then we have discretion to
correct the error, but should do so only if the error “seriously affects the
fairness, integrity or public reputation of judicial proceedings.” Id. (internal
alterations, quotation marks, and citations omitted).
       Porras-Chavira had two convictions of illegal reentry and, although two
additional convictions referenced by the district court were not listed
specifically in the presentence report as illegal reentry, they involved
immigration offenses. The district court’s statement was merely an inexact
reference to the fact that Porras-Chavira had four prior immigration offenses.
Given that fact, Porras-Chavira has failed to show a clear or obvious error as


       1 Porras-Chavira has waived a challenge to our decision in Peltier by raising the issue
for the first time in his reply brief. See United States v. Tuma, 738 F.3d 681, 691 (5th Cir.
2013).


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                                 No. 15-10890

to the district court’s reliance on these four convictions and other factors to
impose the variance and the term of supervised release. See Puckett, 556 U.S.
at 135.
      Porras-Chavira’s challenge to the extent of the upward variance is
equally unavailing, even under an abuse of discretion standard of review. See
United States v. Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008) (declining to
determine the applicable standard of review if the defendant would be
unsuccessful under either standard).       The district court explained that it
imposed the variance because of the nature of the current offense and Porras-
Chavira’s history and characteristics, including his prior immigration
convictions and driving while intoxicated and firearms offenses. See 18 U.S.C.
§ 3553(a). The district court also noted that the § 3553(a) factors supported
the variance in light of Porras-Chavira’s history and current offense,
specifically, the need for the sentence to reflect the seriousness of the offense
and promote respect for the law (§ 3553(a)(2)(A)), to deter criminal conduct
(§ 3553(a)(2)(B)), to protect the public (§ 3553(a)(2)(C)), and to provide needed
training or treatment (§ 3553(a)(2)(D)). Under the circumstances, we defer to
the district court’s determination that the § 3553(a) factors, on the whole,
justify the extent of the upward variance imposed in this case, see United
States v. Broussard, 669 F.3d 537, 551 (5th Cir. 2012), which is similar to other
variances we have previously affirmed. See United States v. Brantley, 537 F.3d
347, 349-50 (5th Cir. 2008); United States v. Lopez-Velasquez, 526 F.3d 804,
807 (5th Cir. 2008); United States v. Smith, 440 F.3d 704, 708-10 (5th Cir.
2006).
      Porras-Chavira additionally argues that the variance was, in essence, an
upward departure for which he did not receive the required notice. The district
court expressly stated that it was imposing the variance based on several of



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                                 No. 15-10890

the § 3553(a) factors, as well as Porras-Chavira’s criminal history and instant
offense. Accordingly, Porras-Chavira has not shown clear or obvious error in
the district court’s imposition of an upward variance. See Puckett, 556 U.S. at
135; United States v. Jacobs, 635 F.3d 778, 782 (5th Cir. 2011).
      Porras-Chavira also challenges the district court’s imposition of a term
of supervised release despite the likelihood of his deportation. Although the
Guidelines provide that the district court ordinarily should not impose
supervised release for an alien who is likely to be deported after serving his
term of imprisonment, U.S.S.G. § 5D1.1(c), in this case, the district court
explained that a term of supervised release was needed to “offer an additional
potential sanction against the defendant should he subsequently be deported
and then try to unlawfully come back into this country.” In light of Porras-
Chavira’s prior immigration offenses, his criminal record generally, and the
district court’s explanation for imposing the term of supervised release, Porras-
Chavira has failed to show that the district court erred in imposing a term of
supervised release.   See Gall, 552 U.S. at 51; United States v. Cancino-
Trinidad, 710 F.3d 601, 607 (5th Cir. 2013).
      Finally, Porras-Chavira argues that his sentence violates due process
because it exceeds the statutory maximum for the offense charged in the
indictment. He correctly acknowledges that his argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998), which held that
convictions used to enhance a sentence under 8 U.S.C. § 1326(b)(2) need not be
set forth in the indictment.
      The judgment of the district court is AFFIRMED.




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