     Case: 12-20408       Document: 00512314282         Page: 1     Date Filed: 07/19/2013




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

                                                                            FILED
                                                                            July 19, 2013
                                     No. 12-20408
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JASIEL TORRES-IBARRA, also known as Jasiel Torres, also known as Jasiel
Torres Ibarra,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:12-CR-36-1


Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       Jasiel Torres-Ibarra appeals the 48-month non-guidelines sentence
imposed following his guilty plea conviction of illegal reentry. He argues that
the district court improperly calculated his criminal history score by assigning
four criminal history points to his December 2009 marijuana trafficking
conviction pursuant to U.S.S.G. § 4A1.1(a) and (d) and that the sentence is
substantively unreasonable.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-20408

      We “must first ensure that the district court committed no significant
procedural error, such as failing to calculate (or improperly calculating) the
Guidelines range . . . [or] selecting a sentence based on clearly erroneous facts.”
Gall v. United States, 552 U.S. 38, 51 (2007). The “district court’s interpretation
or application of the Sentencing Guidelines is reviewed de novo, and its factual
findings are reviewed for clear error.” United States v. Cisneros-Gutierrez,
517 F.3d 751, 764 (5th Cir. 2008) (internal quotation marks, ellipsis, and citation
omitted).
      Torres-Ibarra identifies two procedural errors. First, he contends, as he
did in the district court, that it was error to assess three criminal history points,
instead of one point, based on his December 2009 marijuana trafficking
conviction due to the district court’s determination that the offense resulted in
a sentence of imprisonment exceeding one year and one day. § 4A1.1(a). The
supporting documentation reflects that, as part of the sentence, Torres-Ibarra
was sentenced to a three-year mandatory minimum term of imprisonment. See
FLA. STAT. ANN. § 893.135(a)(1); State v. Houston, 605 So. 2d 962, 963 (Fla. Dist.
Ct. App. 1992). However, the plea agreement at least suggests that no minimum
sentence was contemplated by the parties. We need not resolve this question
because even if the district court erred by adding the two additional points, any
error was harmless because the district court implicitly considered the
guidelines range that would have applied had it erred in calculating the criminal
history category and stated that it would impose the same sentence even if
Torres-Ibarra’s criminal history category was III instead of IV. See United
States v. Bonilla, 524 F.3d 647, 656-57 (5th Cir. 2008); see also United States v.
Duhon, 541 F.3d 391, 396 (5th Cir. 2008).
      Torres-Ibarra failed to preserve his second argument of procedural error,
i.e., that he should not have been assigned two additional criminal history points
pursuant to § 4A1.1(d) because he was not under a criminal justice sentence at
the time of the instant offense. Our review of this claim is therefore for plain

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                                  No. 12-20408

error. See United States v. Rodriguez-Parra, 581 F.3d 227, 229 (5th Cir. 2009).
To show plain error, the appellant must show a forfeited error that is clear or
obvious and that affects his substantial rights.      Puckett v. United States,
556 U.S. 129, 135 (2009). If the appellant makes such a showing, this court has
the discretion to correct the error but only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id.
      Even if the district court erred by assessing two points pursuant to
§ 4A1.1(d), Torres-Ibarra is not entitled to relief. Taking his two procedural
error arguments together, Torres-Ibarra complains that the district court erred
by adding a total of four criminal history points to his criminal history score,
making his criminal history score an eight when it should have been four. A
criminal history score of four would have resulted in a criminal history category
III. The district court considered the possibility that Torres-Ibarra’s correct
criminal history category might have been III, albeit not for all of the reasons
Torres-Ibarra now asserts. Nevertheless, relying on the 18 U.S.C. § 3553(a)
factors, the district court specifically determined that a non-guidelines sentence
was appropriate and stated that the court would impose the same 48-month
sentence regardless of whether Torres-Ibarra’s applicable guidelines range was
based on a criminal history category III or IV. In light of the foregoing, Torres-
Ibarra has not shown that any procedural error was harmful, much less that it
affected his substantial rights. See id.
      As to Torres-Ibarra’s challenge to the substantive reasonableness of his
sentence, we review for an abuse of discretion. See Gall, 552 U.S. at 51. A non-
guidelines sentence is unreasonable if it (1) fails to take into account a factor
that should receive 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. Peltier, 505 F.3d 389, 392
(5th Cir. 2007) (internal quotations and citations omitted). In reviewing the
substantive reasonableness of a sentence, this court considers the totality of the

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circumstances, including the extent of the variance from the guidelines range.
United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008). Furthermore, this
court gives due deference to the district court’s determination that the § 3553(a)
factors support a non-guidelines sentence. Id.
      The district court relied upon several factors in selecting the sentence,
including the following: (1) that under Eleventh Circuit law, Torres-Ibarra’s
December 2009 marijuana trafficking conviction would have resulted in a 16-
level increase to his offense level but, under Fifth Circuit law, the conviction
resulted in only a four-level increase; (2) that Torres-Ibarra was treated with
“extreme leniency” after his Florida conviction, but chose to return to the United
States; and (3) that upon his return to the United States, he was immediately
arrested and convicted for possession of 125 pounds of marijuana.
      The district court did not abuse its discretion by considering the way
Torres-Ibarra’s December 2009 marijuana trafficking conviction was treated in
this circuit and in the Eleventh Circuit. See United States v. Lopez-Salas,
513 F.3d 174, 180-81 (5th Cir. 2008). The remaining factors considered by the
district court in setting Torres-Ibarra’s sentence were all relevant, proper factors
under § 3553(a), namely: the nature and circumstances of the offense; Torres-
Ibarra’s history and characteristics; the need to reflect the seriousness of the
offense, to promote respect for the law, to provide just punishment for the
offense, to afford adequate deterrence to criminal conduct; and the need to
protect the public from further crimes by Torres-Ibarra. Furthermore, the
extent of the variance is reasonable given that this court has affirmed
substantial variances in other cases. See United States v. Lopez-Velasquez,
526 F.3d 804, 805-07 (5th Cir. 2008); see also Brantley, 537 F.3d at 348-50;
United States v. Jones, 444 F.3d 430, 433, 441-42 (5th Cir. 2006). Accordingly,
the judgment is AFFIRMED.




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