     Case: 15-10460      Document: 00513305949         Page: 1    Date Filed: 12/14/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-10460
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        December 14, 2015
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

LEONIDEZ VERGARA-TAPIA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 6:14-CR-45-1


Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM: *
       Leonidez Vergara-Tapia (Tapia) pleaded guilty to illegal reentry
following deportation. The district court sentenced Tapia above the advisory
guidelines range to 48 months of imprisonment.
       In his sole issue on appeal, Tapia challenges his above-guidelines
sentence as substantively unreasonable. He argues that the district “court was
wrong to treat the oldest offenses on equal footing with the newest [offenses]”


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-10460

and that his older offenses “have far less bearing” on his history and
characteristics.
      We review sentences for reasonableness. Gall v. United States, 552 U.S.
38, 51 (2007). An above-guidelines sentence is unreasonable if the district
court (1) did not account for a factor that should have received significant
weight, (2) gave significant weight to an irrelevant or improper factor, or
(3) made a clear error of judgment in balancing the sentencing factors. United
States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006). We must consider the
substantive reasonableness of the sentence based on “the totality of the
circumstances, including the extent of any variance from the Guidelines
range.” United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008) (internal
quotation marks and citation omitted). “In making this determination, we
must give due deference to the district court’s decision that the [18 U.S.C.]
§ 3553(a) factors, on a whole, justify the extent of the variance.” United States
v. Gerezano-Rosales, 692 F.3d 393, 401 (5th Cir. 2012) (internal quotation
marks and citation omitted).
      Tapia’s argument that the district court gave too much weight to his
criminal history is unavailing. The record reflects that the district court gave
Tapia’s counsel, and Tapia himself, an opportunity to speak before the sentence
was imposed. The district court noted that Tapia had “an extensive criminal
history,” including five DWI convictions, three prior convictions for
immigration offenses, 11 “apprehensions by the Border Patrol,” and two
convictions for false or fraudulent documents, amounting to “a total of ten prior
convictions, eight of which received zero criminal history points.” Based on
this information, the district court made an individualized assessment that a
sentence within Tapia’s 10-to-16 month guidelines range would not adequately
address the § 3553(a) factors. See United States v. Lopez-Velasquez, 526 F.3d



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                                No. 15-10460

804, 807 (5th Cir. 2008). Tapia has not shown that the district court committed
clear error in balancing the sentencing factors. See Smith, 440 F.3d at 708.
      Although Tapia complains that his 48-month sentence is “three-times
the high end of the guideline range,” we have affirmed similar or greater
variances as substantively reasonable where the district court based its
upward variance on permissible considerations. See, e.g., United States v. Key,
599 F.3d 469, 475-76 (5th Cir. 2010); Brantley, 537 F.3d at 348-50; United
States v. Smith, 417 F.3d 483, 492 (5th Cir. 2005). Here, the district court
based its upward variance on factors found in § 3553(a). Accordingly, the 48-
month sentence, which was 32 months above the top of the guidelines range of
10 to 16 months of imprisonment, is substantively reasonable. See Smith, 440
F.3d at 708, 710.
      AFFIRMED.




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