     Case: 15-10038      Document: 00513226472         Page: 1    Date Filed: 10/09/2015




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

                                    No. 15-10038                                  FILED
                                  Summary Calendar                          October 9, 2015
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ISMAEL MARTINEZ-MATA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:14-CR-186


Before JOLLY, PRADO, and ELROD, Circuit Judges.
PER CURIAM: *
       Ismael Martinez-Mata (Martinez) appeals his 40-month, above-
guidelines sentence of imprisonment and his three-year term of supervised
release imposed following his guilty plea to being found unlawfully present in
the United States following deportation. Martinez argues that the 40-month
term of imprisonment is substantively unreasonable because the district court
imposed a variance that was almost twice the top of 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-10038    Document: 00513226472       Page: 2   Date Filed: 10/09/2015


                                 No. 15-10038

Because Martinez failed to raise this objection in the district court, review is
for plain error. See United States v. Segura, 747 F.3d 323, 327 (5th Cir. 2014).
The district court considered all the relevant 18 U.S.C. § 3553(a) factors and
gave specific reasons for the upward variance. Martinez has not demonstrated
that the district court considered any improper factors in imposing a non-
Guidelines sentence. See United States v. Smith, 440 F.3d 704, 708 (5th Cir.
2006). Further, the court has upheld much greater upward variances. See
United States v. Key, 599 F.3d 469, 475-76 (5th Cir. 2010); United States v.
Brantley, 537 F.3d 347, 348-50 (5th Cir. 2008).
      Martinez also argues that the district court procedurally erred in
imposing a three-year term of supervised release based on its improper
consideration of the factors in § 3553(a)(2) and in imposing the term contrary
to U.S.S.G. § 5D1.1(c). Because Martinez did not raise these arguments in the
district court, these claims are subject to plain error review. See United States
v. Dominguez-Alvarado, 695 F.3d 324, 328 (5th Cir. 2012).
      The district court expressly stated that in imposing the term of
supervised release, it was providing “an added measure of deterrence and
protection based on the facts and circumstances of the case,” an appropriate
factor to be considered.     Because the district court primarily relied on
permissible § 3553(a) factors in imposing the term of supervised release, no
clear or obvious error occurred. See Dominguez-Alvarado, 695 F.3d at 328.
      The three-year term of supervised release was within the permissible
statutory and guidelines range. See 18 U.S.C. § 3583(a), (b)(2), § 3559(a)(3);
U.S.S.G. § 5D1.2(a)(2). Martinez has failed to point out any factors that rebut
the presumption of reasonableness that attaches to the guideline term of
supervised release. See United States v. Cooks, 589 F.3d 173, 186 (5th Cir.
2009). Thus, he has failed to show that the district court abused its discretion



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                                No. 15-10038

in imposing the term of supervised release. See Gall v. United States, 552 U.S.
38, 51 (2007).
      The sentence is AFFIRMED.




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