     Case: 11-40308     Document: 00511626759         Page: 1     Date Filed: 10/07/2011




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

                                                                            FILED
                                                                          October 7, 2011
                                     No. 11-40308
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

DAVID MARES,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 2:10-CR-1100-1


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        David Mares appeals the upward variance imposed by the district court
following his guilty plea conviction for harboring and concealing a escapee in
violation of 18 U.S.C. § 1072. Mares argues that the district court erred in
finding that he assisted in the escape, disregarded the advisory guidelines range,
and provided insufficient justification for the unusually harsh sentence. Because
Mares did not object to the reasonableness of the sentence in the district court,
review is limited to plain error. See United States v. Peltier, 505 F.3d 389, 392

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-40308

(5th Cir. 2007); see also Puckett v. United States, 556 U.S. 129, 129 S. Ct. 1423,
1429 (2009).1
       Mares has not shown that the upward variance was substantively
unreasonable. The district court considered the parties’ arguments, Mares’s
statement, the Presentence Report, and the advisory guidelines range, as well
as the serious nature of Mares’s crime2 and the escapee’s drug trafficking and
money laundering crimes, the public’s efforts in prosecuting these crimes, the
high likelihood that Mares assisted in the escape, Mares’s false statements to
investigators and lack of remorse, and the fact that a lesser sentence would
encourage others to help inmates escape.               The district court’s statements
justified the upward variance and reflect that it considered the 18 U.S.C.
§ 3553(a) factors, including the nature and circumstances of the offense, the
history and characteristics of Mares, and the need to protect the public, to deter
future criminal conduct, and to promote respect for the law. See United States
v. Smith, 440 F.3d 704, 707-10 (5th Cir. 2006); see also United States v.
Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir. 2006). Further, the extent of the
variance was not excessive under the circumstances. The 18-month sentence
was 12 months greater than the top of Mares’s guidelines range and did not
exceed the three-year statutory maximum sentence for his offense. See 18
U.S.C. § 1072. We have affirmed similar and more substantial departures. See,
e.g., United States v. Brantley, 537 F.3d 347, 349-50 (5th Cir. 2008) (upholding
an upward departure or variance to 180 months from the top of the advisory
guidelines range of 51 months); United States v. Lopez-Velasquez, 526 F.3d 804,



       1
         Mares’s plea agreement included an appeal waiver. However, because the
Government has not sought to enforce the waiver, the waiver does not preclude Mares’s
appeal. See United States v. Story, 439 F.3d 226, 231 (5th Cir. 2006).
       2
         The district court carefully considered the evidence that linked Mares to the original
escape and invited comment and citation to evidence by counsel on this point. We find no
reversible error in the district court’s consideration of this issue.

                                              2
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                               No. 11-40308

806-07 (5th Cir. 2008) (upholding upward variance to 72 months from 30-month
guidelines maximum).
     AFFIRMED.




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