     Case: 18-30995      Document: 00515018800         Page: 1    Date Filed: 07/02/2019




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

                                    No. 18-30995                            FILED
                                  Summary Calendar                       July 2, 2019
                                                                       Lyle W. Cayce
                                                                            Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

DONALD W. REYENGA, also known as Duck,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:14-CR-117-1


Before DAVIS, HAYNES, and GRAVES, Circuit Judges.
PER CURIAM: *
       Donald W. Reyenga appeals his 120-month, above-guidelines sentence
for being a felon in possession of a firearm, which was imposed after the district
court vacated his original 192-month Armed Career Criminal Act (ACCA)
sentence. Reyenga contends that his sentence is substantively unreasonable
because the district court failed to give adequate weight to the 41-to-51-month
guidelines range that the court applied post-vacatur, gave inordinate weight


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-30995

to his criminal history, and clearly erred in balancing the 18 U.S.C. § 3553(a)
sentencing factors. He alleges that district court varied upward impermissibly
out of a desire to reimpose, to the extent possible, his vacated ACCA sentence
based on its dissatisfaction with the new, lower guidelines range.
      We review the substantive reasonableness of an above-guidelines
sentence for abuse of discretion, owing great deference to the district court’s
findings and conclusions. United States v. Key, 599 F.3d 469, 475 (5th Cir.
2010); see Gall v. United States, 552 U.S. 38, 51 (2007). An above-guidelines
sentence is substantively 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. Smith, 440 F.3d 704, 708
(5th Cir. 2006).
      Reyenga fails to show an abuse of discretion. The district court expressly
noted the 41-to-51-month guideline range that applied after the vacatur of
Reyenga’s prior ACCA sentence but expressed concern that a sentence in that
range would not adequately capture the seriousness of his extensive criminal
history, which includes multiple convictions for burglary, drug offenses, and
violent crimes as well as numerous parole revocations. Reyenga’s criminal
history was a relevant and proper sentencing factor, which the district court
was entitled to give significant weight. See id.; United States v. Brantley, 537
F.3d 347, 350 (5th Cir. 2008).
      Although Reyenga’s sentence is considerably above the top of the
guidelines range, we have “previously upheld comparable increases, in terms
of both percentage and magnitude.” United States v. Smith, 417 F.3d 483, 492
(5th Cir. 2005); see Brantley, 537 F.3d at 350 (5th Cir. 2008) (affirming variance
to 180 months from guidelines range of 41 to 51 months based on inadequacy



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                               No. 18-30995

of defendant’s criminal history category).        As in Brantley, Reyenga’s
“undisputed criminal history provides ample justification for the sentence” in
this case. Brantley, 537 F.3d at 350.
      Finally, we find no merit in Reyenga’s contention that the district court’s
primary motivation was to reduplicate, to the extent possible, his prior ACCA
sentence. Nothing in the record suggests that to be the case; the district court
made amply clear that its decision to vary above the guidelines range was
rooted in its concern over Reyenga’s extensive and inadequately weighted
criminal history. As stated above, that was a reasonable determination. See
id. at 350.
      The judgment is AFFIRMED.




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