     Case: 14-11240      Document: 00513241300         Page: 1    Date Filed: 10/21/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-11240
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                                October 21, 2015
                                                                           Lyle W. Cayce
                                                 Plaintiff-Appellee             Clerk

v.

ARTURO LEMUS, JR.,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:14-CR-105-1


Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
PER CURIAM: *
       Arturo Lemus, Jr., appeals his 120-month sentence imposed following
his guilty plea conviction for being a felon in possession of a firearm in violation
of 18 U.S.C. § 922(g)(1).         On appeal, Lemus challenges the substantive
reasonableness of his sentence, arguing that the district court “aggrandized
[his] criminal history and minimized his mitigating facts.” In support of this
challenge, Lemus asserts that the district court placed too much emphasis on
his criminal history. He also contends that the district court “ignored 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 14-11240

mitigating facts,” namely, that he possessed the firearm at issue for protection
after a drive-by shooting at his home, that he had already been penalized for
the crimes he committed during his pretrial release for the instant offense, and
his positive character traits. Lemus’s sentence was a result of an upward
departure or variance from the applicable guidelines range. However, the
specific characterization of Lemus’s sentence is irrelevant because the district
court’s sentence is substantively reasonable “under the totality of the relevant
statutory factors.” United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008)
(internal quotation marks and citation omitted).
      We review the substantive reasonableness of a sentence for abuse of
discretion. Gall v. United States, 552 U.S. 38, 51 (2007). A non-guidelines
sentence will be found substantively unreasonable when 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).
      The record reflects that the district court made an individualized
assessment of the facts and determined that a within-guidelines sentence
would inadequately address the sentencing factors set forth in 18 U.S.C.
§ 3553(a). In addition, the district court provided fact-specific reasons at
sentencing and in the statement of reasons justifying the imposition of an
upward variance.     Although Lemus’s 120-month sentence is the statutory
maximum term of imprisonment and 42 months greater than the top of his 63
to 78-month guidelines range, we have upheld significantly greater variances.
See United States v. Key, 599 F.3d 469, 475-76 (upholding a 216-month
sentence where the guidelines range was a maximum of 57 months); Smith,




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                                   No. 14-11240

417 F.3d at 492-93 (affirming a 120-month sentence where the guidelines
range was a maximum of 41 months).
         Contrary to Lemus’s argument, the district court was not precluded from
considering factors, such as his convictions that received criminal history
points or his state drug trafficking arrest while on pretrial release, that were
already incorporated into the Guidelines calculation. See Brantley, 537 F.3d
at 350.     Similarly unavailing is Lemus’s argument that the district court
“minimized” or “ignored” mitigating facts. The record establishes that the
district court was aware of Lemus’s mitigating facts but nevertheless
concluded that an above-guidelines sentence was warranted in light of other
factors. In essence, Lemus is requesting that this court reweigh the § 3553(a)
factors, which is not within the scope of this court’s review. See Gall, 552 U.S.
at 51.
         Under the totality of the circumstances, including the significant
deference that is given to the district court’s consideration of the § 3553(a)
factors and the district court’s reasons for its sentencing decision, Lemus failed
to show that his 120-month sentence is substantively unreasonable. See Gall,
552 U.S. at 50-53.        Accordingly, the judgment of the district court is
AFFIRMED.




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