     Case: 12-41104       Document: 00512307873         Page: 1     Date Filed: 07/15/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                            July 15, 2013
                                     No. 12-41104
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JUAN ANTONIO VILLEGAS-PEREZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:11-CR-776-2


Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
       Juan Antonio Villegas-Perez (Villegas) pleaded guilty pursuant to a plea
agreement to possessing a firearm as an alien. He challenges the procedural and
substantive reasonableness of his 37-month prison sentence, which was at the
bottom of the advisory guidelines range. Because he raised no objections to his
sentence in the district court, our review is for plain error. See United States v.
Whitelaw, 580 F.3d 256, 259-60 (5th Cir. 2009). A sentence is procedurally
unreasonable where a district court improperly calculates the guidelines range,

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-41104     Document: 00512307873      Page: 2   Date Filed: 07/15/2013

                                  No. 12-41104

selects a sentence based on clearly erroneous facts, or fails to adequately explain
the chosen sentence. Gall v. United States, 552 U.S. 38, 51 (2007). We presume
that a within-guidelines sentence, like Villegas’s, is reasonable, United States v.
Alonzo, 435 F.3d 551, 554 (5th Cir. 2006), though a defendant can rebut the
presumption if he shows that the sentence gave significant weight to an
irrelevant or improper factor or represented a clear error of judgment in
balancing the sentencing factors, United States v. Jenkins, 712 F.3d 209, 214
(5th Cir. 2013).
      Villegas argues that the court imposed a procedurally unreasonable
sentence by basing it on clearly erroneous factual findings regarding his family’s
reliance on government assistance and his failure to pay child support. Based
on the presentence report and an extended colloquy with Villegas, the court did
not err in finding that Villegas only paid child support when “he [felt] like it,”
the Government supported the family, and Villegas acted irresponsibly with
regard to his financial obligations to his children.
      Next, Villegas contends that the court improperly increased his offense
level based on his prior Texas conviction for evading arrest in a vehicle. As
Villegas concedes, his argument is foreclosed by United States v. Harrimon, 568
F.3d 531, 532-33, 536 (5th Cir. 2009), where we held that this offense is a violent
felony under the Armed Career Criminal Act (ACCA) because “fleeing by vehicle
poses a serious risk of injury to others.” Contrary to Villegas’s suggestion that
Sykes v. United States, 131 S. Ct. 2267 (2011), implicitly overruled Harrimon,
the Sykes Court validated our holding in Harrimon by holding that a conviction
under Indiana’s felony vehicle flight law constituted a violent felony under the
ACCA. See Sykes, 131 S. Ct. at 2277.
      Because the district court did not elaborate on the reasons why it rejected
each of Villegas’s arguments that his criminal history score was overstated,
Villegas contends, the court did not adequately explain its sentence. Villegas
concedes, however, that he cannot show that a more thorough discussion by the

                                        2
    Case: 12-41104     Document: 00512307873     Page: 3   Date Filed: 07/15/2013

                                  No. 12-41104

district court would have resulted in a lower sentence and thus cannot establish
plain error. See Puckett v. United States, 556 U.S. 129, 135 (2009).
      As for substantive reasonableness, Villegas first asserts that the district
court improperly gave significant weight to his family’s finances and his prior
conviction for evading arrest. The court’s mention of Villegas’s family’s economic
situation was in the context of its observation that Villegas did not financially
support his children. Villegas’s failure to do so was properly considered when
the court evaluated his history and characteristics. See 18 U.S.C. § 3553(a)(1).
Moreover, the district court appropriately took into account his prior conviction
for evading arrest in determining his offense level. See § 2K2.1(a)(4)(A);
Harrimon, 568 F.3d at 532-33, 536. The offense was also properly included in
his criminal history score. See U.S.S.G. § 4A1.1(b).
      Villegas also argues that the sentence was too severe in light of his prior
shorter sentences. However, nothing required the district court to impose a
below-guidelines sentence merely because Villegas received the benefit of more
lenient sentences in the past. Cf. United States v. Lee, 358 F.3d 315, 328-29 (5th
Cir. 2004) (upholding an upward sentencing departure in part on the basis that
the defendant had not been deterred by prior lenient sentences).
      Finally, Villegas has not shown that the district court committed a clear
error in judgment in balancing the sentencing factors. See Jenkins, 712 F.3d at
214. At most, his argument that the court gave too much weight to some factors
amounts to a disagreement with the balance that the district court struck, but
we will not reweigh the § 3553(a) factors. See United States v. McElwee, 646
F.3d 328, 344 (5th Cir. 2011). The district court understood the facts of the case
and twice explained that it had accounted for the § 3553(a) factors. Villegas’s
“disagreement with the propriety of the sentence imposed does not suffice to
rebut the presumption of reasonableness that attaches to a within-guidelines
sentence.” United States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010).
      AFFIRMED.

                                        3
