     Case: 11-40780     Document: 00511903528         Page: 1     Date Filed: 06/28/2012




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

                                                                            FILED
                                                                           June 28, 2012
                                     No. 11-40780
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JAIME IBARRA-LUNA,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:08-CR-778-1


Before SMITH, GARZA, and DeMOSS, Circuit Judges.
PER CURIAM:*
        Jaime Ibarra-Luna (Ibarra) appeals the sentence for his conviction for
illegal reentry in violation of 8 U.S.C. § 1326(a) and (b). He was originally
sentenced to 36 months of imprisonment to run consecutively to an undischarged
state sentence and two years of supervised release. We determined that the
district court had improperly calculated the guidelines range and vacated and
remanded the case for resentencing. United States v. Ibarra-Luna, 628 F.3d 712,
716, 719 (5th Cir. 2010). On remand, the district court imposed the same

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-40780

sentence of 36 months of imprisonment, to run consecutively to the undischarged
state sentence, and two years of supervised release. Ibarra contends that his
sentence is substantively unreasonable because the district court gave undue
weight to his state murder conviction and failed to consider and give appropriate
weight to his post-sentencing rehabilitation.
         Sentences are reviewed under an abuse of discretion standard for
substantive reasonableness. Gall v. United States, 552 U.S. 38, 51 (2007). We
consider “the totality of the circumstances, including the extent of any variance
from the Guidelines range” and “must give due deference to the district court’s
decision that the § 3553(a) factors, on a whole, justify the extent of the variance.”
Id.     “A non-Guideline sentence unreasonably fails to reflect the statutory
sentencing factors where 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).
         Ibarra was convicted in state court of murder and sentenced to 22 years
of imprisonment. The district court determined that the conviction evinced
Ibarra’s propensity for violence. Though the state court had imposed a lengthy
sentence, there was uncertainty regarding the amount of time that Ibarra was
likely to serve. Combined with this uncertainty was the district court’s concern
that Ibarra would likely illegally reenter the United States given Ibarra’s
significant ties to this country. In light of these circumstances, the district court
did not give undue weight to the state murder conviction or fail to account for
the length of the state sentence by imposing a consecutive 36-month sentence.
See id.
         The district court did not explicitly respond to Ibarra’s argument that his
post-sentencing rehabilitation efforts warranted a lower sentence. Cf. Pepper
v. United States, 131 S. Ct. 1229, 1241 (2011). However, the district court
indicated at the beginning of the resentencing hearing that it had read Ibarra’s

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                                 No. 11-40780

sentencing memorandum in which Ibarra pointed out that he had enrolled in
educational programs. Ibarra made this same point at the hearing. Thus, the
district court was aware of his post-sentencing rehabilitation efforts but
implicitly concluded that the efforts did not warrant a lower sentence. Ibarra’s
disagreement with the district court’s conclusion does not demonstrate that the
sentence does not account for a factor that should have received significant
weight or that the sentence represents a clear error of judgment in balancing the
sentencing factors. See Smith, 440 F.3d at 708; see also Gall, 552 U.S. at 51.
      The extent of the variance, 24 months from the guidelines maximum of 12
months, is well within the range of variances we have upheld. 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); Smith, 440 F.3d at 705-
06, 709-10. Given the significant deference that is due to a district court’s
consideration of the § 3553(a) factors and the district court’s reasons for its
sentencing decision, Ibarra has not demonstrated that the sentence was
substantively unreasonable. See Gall, 552 U.S. at 51.
      The judgment of the district court is AFFIRMED.




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