     Case: 14-40380      Document: 00512903357         Page: 1    Date Filed: 01/15/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-40380
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         January 15, 2015
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

JOSE MARIA IRACHETA-REYES,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 5:13-CR-1194-1


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
       Jose Maria Iracheta-Reyes pleaded guilty to one count of illegal reentry
into the United States and received a below-guidelines sentence of 48 months
in prison as well as a three-year term of supervised release. In this appeal, he
first argues that he was not properly informed of the maximum possible
sentence for his offense and would not have pleaded guilty if he had been so
informed. He notes that the magistrate judge explained the different possible


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-40380     Document: 00512903357       Page: 2   Date Filed: 01/15/2015


                                   No. 14-40380

maximum sentences available based on his criminal history but complains that
his plea was not truly informed because he did not know which specific scenario
would apply to him.
      We review this claim only for plain error due to Iracheta-Reyes’s failure
to present it to the district court. See United States v. Vonn, 535 U.S. 55, 59
(2002). To show plain error, the appellant must show a forfeited error that is
clear or obvious and that affected his substantial rights. Puckett v. United
States, 556 U.S. 129, 135 (2009). If the appellant makes such a showing, we
have the discretion to correct the error, but will do so only if it seriously affects
the fairness, integrity, or public reputation of judicial proceedings. Id. Making
a showing of plain error “is difficult, as it should be.” Id. (internal quotation
marks and citation omitted).
      Federal Rule of Criminal Procedure 11(b)(1)(H) requires that a
defendant who is pleading guilty be informed of “any maximum penalty,
including imprisonment, fine, and term of supervised release.” The magistrate
judge complied with the plain language of the Rule. Additionally, there is
nothing in the record to suggest that Iracheta-Reyes would have insisted on
going to trial absent the alleged error. See United States v. Dominguez Benitez,
542 U.S. 74, 83, 85 (2004); Vonn, 535 U.S. at 74-75. Iracheta-Reyes has not
shown plain error in connection with his Rule 11 colloquy.
      Next, Iracheta-Reyes argues that his sentence is more harsh than
needed to achieve the aims of 18 U.S.C. § 3553 and that both the nonviolent
nature of his offense and his cultural assimilation warranted a lesser sentence.
Sentences, whether inside or outside the advisory guidelines range, are
reviewed for reasonableness in light of the § 3553(a) factors. Gall v. United
States, 552 U.S. 38, 51 (2007). When, as in this case, the district court has
imposed a sentence that deviates from the guidelines range, reasonableness



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                                 No. 14-40380

review requires that we evaluate whether the sentence “unreasonably fails to
reflect the statutory sentencing factors” set forth in § 3553(a). United States
v. Smith, 440 F.3d 704, 708 (5th Cir. 2006).
      A non-guidelines sentence unreasonably fails to reflect the statutory
sentencing factors if the district court (1) did not account for a factor that
should have been heavily weighted, (2) heavily weighted an unimportant or
improper factor, or (3) made a clear error of judgment in weighing the
sentencing factors. Id. at 708. We consider “the totality of the circumstances,
including the extent of any variance from the Guidelines range,” while
affording “deference” to the district court’s choice of sentence and keeping in
mind that it may not reverse simply because it would have imposed a different
sentence. United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008) (internal
quotation marks and citation omitted).
      The sentence imposed is not unreasonable. The record shows that the
district court considered Iracheta-Reyes’s arguments in favor of a below-
guidelines sentence, granted this request, and found a 48-month sentence
appropriate in light of the § 3553(a) factors. There is nothing to indicate that
the district court’s choice of sentence was grounded in disregard for an
important factor, a disproportionate weighing of a factor that was not germane,
or a clearly erroneous weighing of the sentencing factors. See Smith, 440 F.3d
at 708. Rather, the record shows that the district court chose the sentence it
felt most appropriate in light of the § 3553(a) factors. That Iracheta-Reyes
thinks his sentence should have been lower does not mean that it is
unreasonable.    Cf. Gall, 552 U.S. at 51 (holding that a sentence is not
unreasonable simply because the appellate court would have chosen a different
sentence).
      AFFIRMED.



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