     Case: 18-20727       Document: 00515124331         Page: 1     Date Filed: 09/19/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals
                                                                                Fifth Circuit
                                     No. 18-20727                             FILED
                                   Summary Calendar                   September 19, 2019
                                                                         Lyle W. Cayce
                                                                              Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

JUAN ANTONIO ROMO VERA, also known as Juan Antonio Romo, also
known as Juan Antonio Romo-Vera, also known as Juan Romo-Vera, also
known as Antonio Romo Vera, also known as Antonio Ramo, also known as
Cesar Emilo Reynaga-Rangel, also known as Antiono Juan Romo, also known
as Juan Antonio Ramo, also known as Juan Romo,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:16-CR-495-1


Before BARKSDALE, HAYNES, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Juan Antonio Romo Vera challenges the substantive reasonableness of
his sentence, imposed on resentencing, for his conviction for unlawful presence
in the United States, pursuant to 8 U.S.C. §§ 1326(a) and (b). Vera was



       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 18-20727

sentenced to, inter alia, 59-months’ imprisonment, an upward variance from
an advisory Sentencing Guidelines range of 33- to 41-months’ imprisonment.
      Although post-Booker, the Guidelines are advisory only, the district
court must avoid significant procedural error, such as improperly calculating
the Guidelines sentencing range. Gall v. United States, 552 U.S. 38, 48–51
(2007). If no such procedural error exists, a properly preserved objection to an
ultimate sentence is reviewed for substantive reasonableness under an abuse-
of-discretion standard. Id. at 51; United States v. Delgado-Martinez, 564 F.3d
750, 751–53 (5th Cir. 2009). In that respect, for issues preserved in district
court, its application of the Guidelines is reviewed de novo; its factual findings,
only for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751,
764 (5th Cir. 2008).       As noted, Vera challenges only the substantive
reasonableness of his sentence.
      The district court originally sentenced Vera to 90-months’ imprisonment,
within a 77- to 96-months Guidelines sentencing range. Following our court’s
decisions in United States v. Herrold, 883 F.3d 517, 541 (5th Cir. 2018) (en
banc) (holding “the burglary provisions encoded in Texas Penal Code
§§ 30.02(a)(1) and (3) are indivisible” and “Texas Penal Code § 30.02(a)(3) is
nongeneric because it criminalizes entry and subsequent intent formation
rather than entry with intent to commit a crime”), vacated, 139 S. Ct. 2712
(2019), and United States v. Godoy, 890 F.3d 531, 535–36 (5th Cir. 2018)
(relying on Herrold to hold Texas burglary of a habitation does not constitute
burglary of a dwelling for purposes of the 16-level crime-of-violence
enhancement in Guidelines § 2L1.2 for unlawful reentry or presence in the
United States), our court vacated Vera’s sentence and remanded for




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                                 No. 18-20727

resentencing. United States v. Romo Vera, 734 F. App’x 263, 264 (5th Cir.
2018).
      Accordingly, on resentencing, Vera’s Guidelines sentencing range was
reduced on the issue of whether his prior conviction for burglary of a habitation
under Texas Penal Code § 30.02(a)(1) constituted a crime of violence for
purposes of Guideline § 2L1.2(b)(1)(A)(ii) (2015) (providing a 16-level crime-of-
violence enhancement following unlawful reentry or presence convictions).
Based on the resulting 33- to 41-months range, the district court imposed an
upward variance to sentence Vera to the 59-months’ imprisonment he now
challenges.
      Subsequent to the completion of briefing for this appeal, neither party
has raised what effect, if any, the Supreme Court’s June 2019 decision in
Quarles v. United States, 139 S. Ct. 1872, 1880 (2019) (holding “generic
remaining-in burglary occurs . . . when the defendant forms the intent to
commit a crime at any time while unlawfully remaining in a building or
structure”), and the concomitant vacate and remand in Herrold, 139 S. Ct.
2712, may have on this proceeding.         Therefore, we will not consider that
possible issue.
      An upward variance is unreasonable if the sentence “(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” in 18 U.S.C. § 3553(a). United
States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006). According to Vera, the
district court made a clear error of judgment when balancing the sentencing
factors by relying on his criminal history when the Guidelines already
accounted for this history. Additionally, he asserts the extent of the upward
variance overemphasized the need for deterrence because he faces a lengthy



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                                 No. 18-20727

sentence under the Guidelines if he illegally reenters the United States again.
Finally, he contends the upward variance negated a three-level reduction he
received under the Guidelines for acceptance of responsibility.            Each
contention fails; there was no abuse of discretion.
      The district court appropriately relied on Vera’s extensive criminal
history, his pattern of illegally reentering the United States and committing
further crimes, and the failure of an earlier 37-month sentence for the same
offense to deter him. See Gall, 552 U.S. at 49–50 & n.6. Our court has affirmed
lengthier upward variances imposed for similar reasons. See, e.g., United
States v. Lopez-Velasquez, 526 F.3d 804, 805–07 (5th Cir. 2008); Smith, 440
F.3d at 705–06, 708–10.     We have also rejected the assertion defendant’s
criminal history was an improper factor because the Guidelines accounted for
it, Lopez-Velasquez, 526 F.3d at 807, as well as the contention an upward
variance was unreasonable because it negated the effect of an adjustment for
acceptance of responsibility. See, e.g., United States v. Douglas, 569 F.3d 523,
527–28 (5th Cir. 2009).
      AFFIRMED.




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