     Case: 15-50565      Document: 00513453439         Page: 1    Date Filed: 04/06/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-50565
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                             April 6, 2016
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

SERGIO JESUS NERY,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:14-CR-1541-1


Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
       Sergio Jesus Nery pleaded guilty to illegal reentry following deportation.
The district court sentenced Nery above the guidelines range to 21 months of
imprisonment and three years of supervised release. In his sole issue on
appeal, Nery challenges his above-guideline sentence as substantively
unreasonable.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-50565    Document: 00513453439     Page: 2   Date Filed: 04/06/2016


                                 No. 15-50565

      This court reviews sentences, whether inside or outside the Guidelines,
for reasonableness. Gall v. United States, 552 U.S. 38, 51 (2007). In reviewing
a non-guidelines sentence for substantive reasonableness, this court
“consider[s] the totality of the circumstances, including the extent of any
variance from the Guidelines range.” United States v. Brantley, 537 F.3d 347,
349 (5th Cir. 2008) (internal quotation marks and citation omitted).         “In
making this determination, [this court] must give due deference to the district
court’s decision that the [18 U.S.C.] § 3553(a) factors, on a whole, justify the
extent of the variance.” United States v. Gerezano-Rosales, 692 F.3d 393, 401
(5th Cir. 2012) (internal quotation marks and citation omitted). A sentence is
unreasonable if it “(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.” United States v. Chandler, 732 F.3d 434, 437 (5th Cir. 2013) (internal
quotation and citations omitted).
      Nery’s challenge to his sentence is unavailing. The record reflects that
the district court gave Nery’s counsel, and Nery himself, an opportunity to
speak before the sentence was imposed. The district court noted that Nery had
several convictions that did not receive criminal history points. Although the
district court admitted that the convictions were “somewhat old,” it
nevertheless felt that Nery’s criminal history was underrepresented. Based on
this information, the district court made an individualized assessment that a
sentence within Nery’s 8-to-14 month guidelines range would not adequately
address the § 3553(a) factors. See United States v. Lopez-Velasquez, 526 F.3d
804, 807 (5th Cir. 2008) (“[T]he sentencing court is free to conclude that the
applicable Guidelines range gives too much or too little weight to one or more
factors, and may adjust the sentence accordingly under § 3553(a).” (internal



                                       2
    Case: 15-50565     Document: 00513453439      Page: 3    Date Filed: 04/06/2016


                                  No. 15-50565

quotation marks and citation omitted)). Nery has not shown that the district
court committed clear error in balancing the sentencing factors. See Chandler,
732 F.3d at 437.
      As to Nery’s other arguments, this court has rejected substantive
reasonableness challenges, like those raised in this appeal, based on the
alleged lack of seriousness of illegal reentry. See United States v. Juarez-
Duarte, 513 F.3d 204, 212 (5th Cir. 2008); see also United States v. Aguirre-
Villa, 460 F.3d 681, 683 (5th Cir. 2006).          Finally, the sentence is not
unreasonable in light of Nery’s three-year term of supervised release. The
record reflects that the district court effectively found that a term of supervised
release was necessary to provide an added measure of deterrence and
protection in light of the specific facts and circumstances of this case, including,
inter alia, Nery’s prior removal and criminal record. See United States v.
Cancino-Trinidad, 710 F.3d 601, 607 (5th Cir. 2013).
      AFFIRMED.




                                         3
