     Case: 14-10882      Document: 00513117658         Page: 1    Date Filed: 07/16/2015




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

                                                                             FILED
                                    No. 14-10882                         July 16, 2015
                                  Summary Calendar
                                                                        Lyle W. Cayce
                                                                             Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

VICTOR HERRERA SANTA CRUZ, also known as Victor Herrera Valencia,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:14-CR-20-1


Before JOLLY, WIENER, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant Victor Herrera Santa Cruz pleaded guilty to one
count of being an illegal alien in possession of a firearm. The district court
sentenced him above the guidelines range to 90 months in prison and a three
year term of supervised release. Herrera Santa Cruz argues that his sentence
is substantively unreasonable because his criminal history was adequate to
account for his prior offense. He also contends that the district court should


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-10882

not have speculated about the use of the nine semi-automatic weapons, which
accepted large magazines, to increase the sentence above the recommended
range.
      Pursuant to Gall v. United States, 552 U.S. 38, 51 (2007), we engage in
a bifurcated review of the sentence imposed by the district court. United States
v. Delgado-Martinez, 564 F.3d 750, 752 (5th Cir. 2009). First, we consider
whether the sentencing court committed a “significant procedural error,” such
as miscalculating the advisory guidelines range. Id. If there is no such error,
or there is error but it is harmless, we proceed to the second step and review
the substantive reasonableness of the sentence imposed for an abuse of
discretion. Id. at 751-53.
      Herrera Santa Cruz does not challenge the sentence procedurally,
asserting only that the 90-month sentence is substantively unreasonable.
Sentences are reviewed for reasonableness in light of the sentencing factors in
18 U.S.C. § 3553(a). United States v. Mares, 402 F.3d 511, 519-20 (5th Cir.
2005), ordinarily under an abuse-of-discretion standard.       United States v.
Johnson, 619 F.3d 469, 471-72 (5th Cir. 2010). When a defendant fails to
preserve a claim of error, however, we apply the plain error standard. United
States v. Peltier, 505 F.3d 389, 391 (5th Cir. 2007). In this case, Herrera Santa
Cruz argued in the district court that the recommended sentencing range was
adequate, but he failed to object to the reasonableness of his sentence. We need
not decide the standard of review, however, as Herrera Santa Cruz’s sentence
may be affirmed under either plain error or abuse of discretion.
      A district court may consider the nature of prior convictions when
determining whether the guidelines range is adequate. See United States v.
Fuentes, 775 F.3d 213, 219-20 (5th Cir. 2014). Also, a sentence above the
recommended guidelines for possession of semi-automatic weapons accepting



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                                No. 14-10882

large capacity magazines is authorized by U.S.S.G. § 5K2.0(a)(2)(A) and
U.S.S.G. § 5K2.17. On appeal, Herrera Santa Cruz is essentially asking this
court to reweigh the sentencing factors. The sentencing court is in the best
position to find facts and judge their import. See Gall, 552 U.S. at 51; United
States v. Scott, 654 F.3d 552, 555 (5th Cir. 2011). Herrera Santa Cruz has not
shown any abuse of discretion by the district court, much less plain error. The
judgment of that court is AFFIRMED.




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