     Case: 10-30540 Document: 00511385942 Page: 1 Date Filed: 02/17/2011




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

                                                 FILED
                                                                          February 17, 2011
                                     No. 10-30540
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

GIOVENNIE BARAHONA, also known as Orlin Geovannie Barahona-Ruis,

                                                   Defendant - Appellant


                   Appeals from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:09-CR-120-1


Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Giovennie Barahona appeals the 120-month sentence imposed following
his guilty plea conviction of illegal reentry. He argues that the district court
improperly used his prior conviction for attempted first degree rape as a basis
for imposing an upward variance because that conviction had already been used
to increase his offense level, to increase his criminal history score, and to
increase the statutory penalty range applicable in this case. He contends that
this constitutes impermissible quadruple counting. He also argues that the

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-30540 Document: 00511385942 Page: 2 Date Filed: 02/17/2011

                                  No. 10-30540

sentence imposed was excessive because it failed to take into account the
sentences imposed on similarly situated defendants.
      This court reviews sentencing decisions for reasonableness, applying an
abuse-of-discretion standard. United States v. Cisneros-Gutierrez, 517 F.3d 751,
764 (5th Cir. 2008). This standard applies whether the sentence is within or
outside the Guidelines range. Id. Appellate courts must first ensure that the
district court did not commit procedural error. Gall v. United States, 128 S. Ct.
586, 597 (2007); Cisneros-Gutierrez, 517 F.3d at 764.              When reviewing
substantive   reasonableness,    this   court   considers   “the   totality   of   the
circumstances, including the extent of any variance from the Guidelines range.”
Gall, 128 S. Ct. at 597. Where, as in this case, the sentence is outside the
Guidelines range, the court may not apply a presumption of unreasonableness.
See id.
      Barahona argues that the district court improperly based its decision to
impose a non-Guidelines sentence on his prior attempted rape conviction
because that conviction was adequately accounted for in the Guidelines range.
This argument is unavailing. See United States v. Williams, 517 F.3d 801, 811
& n.55 (5th Cir. 2008). Moreover, the record reflects that Barahona’s prior
conviction was not the only basis for the district court’s sentencing decision. The
district court also considered Barahona’s unlawful behavior after he illegally
reentered the United States.
      The district court stated that in fashioning the sentence it considered the
Guidelines and the Section 3553(a) factors. The court concluded that a variance
was warranted based on the nature and circumstances of the offense and the
history and characteristics of Barahona, as well as the need to protect the public
from further crimes committed by Barahona. Barahona has not demonstrated
that the district court abused its discretion by determining a variance was
warranted under the totality of the circumstances. See Gall, 128 S. Ct. at 597.



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                                 No. 10-30540

      Barahona argues that the imposition of a 120-month sentence in this case,
where the applicable Guidelines range was 46 to 57 months, was excessive.
However, this court has upheld variances even greater than the increase in
Barahona’s case. See United States v. Brantley, 537 F.3d 347, 348-50 (5th Cir.
2008); United States v. Herrera-Garduno, 519 F.3d 526, 530-32 (5th Cir. 2008);
United States v. Smith, 440 F.3d 704, 708-10 (5th Cir. 2006); United States v.
Simkanin, 420 F.3d 397, 419-20 (5th Cir. 2005).
      Barahona argues that the district court failed to consider the sentencing
objective of avoiding unwarranted sentencing disparities, as set forth in Section
3553(a)(6). This argument is unavailing. See Herrera-Garduno, 519 F.3d at 532
n.6; Smith, 440 F.3d at 709.
      Barahona has not shown that the district court abused its discretion by
deciding to impose a sentence above the Guidelines range or that the sentence
imposed was unreasonable. See Gall, 128 S. Ct. at 597; Williams, 517 F.3d at
808-13. Accordingly, the judgment is AFFIRMED.




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