     Case: 13-50774      Document: 00512663668         Page: 1    Date Filed: 06/13/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-50774
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            June 13, 2014
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

JOSE NUNEZ-PALACIOS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 2:13-CR-3-1


Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM: *
       Jose Nunez-Palacios appeals the 60-month above-guidelines sentence
imposed by the district court after he pleaded guilty to illegal reentry following
deportation in violation of 8 U.S.C. § 1326. Nunez-Palacios argues that the
above-guidelines sentence imposed by the district court was substantively
unreasonable because it failed to take into account the fact that most of his
unscored convictions were for driving offenses, it failed to give adequate weight


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-50774     Document: 00512663668     Page: 2   Date Filed: 06/13/2014


                                  No. 13-50774

to his benign motive for returning to this country, and it failed to give adequate
weight to the fact that he had no prior immigration offenses and that his
longest prior sentence was 364 days.
      The district court considered the arguments of the parties and the
presentence report and was free to conclude, as it did, that the guidelines range
was inadequate in light of 18 U.S.C. § 3553(a)’s sentencing factors. The district
court was particularly concerned that Nunez-Palacios had prior convictions
that were not counted under the Guidelines. The uncounted criminal history
included convictions for aggravated battery and battery. The district court also
noted the fact that Nunez-Palacios illegally reentered the country about seven
months after being removed from the country following a scored conviction for
battery of a pregnant woman.
      The record demonstrates that the district court’s decision to impose a
non-guidelines sentence was based on permissible factors that advanced the
objectives set forth in § 3553(a) and was justified by the facts of the case. See
United States v. Smith, 440 F.3d 704, 708-09 (5th Cir. 2006). Additionally, the
variance does not represent an abuse of the district court’s sentencing
discretion when considered in light of the totality of the circumstances. See
Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Brantley, 537
F.3d 347, 349 (5th Cir. 2008).
      Accordingly, the district court’s judgment is AFFIRMED.




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