     Case: 19-50031      Document: 00515157990         Page: 1    Date Filed: 10/15/2019




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

                                                                                FILED
                                    No. 19-50031                         October 15, 2019
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

DREW AVERY LUNA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:18-CR-144-1


Before HIGGINBOTHAM, HO, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Drew Avery Luna appeals the 60-month above-guidelines term of
imprisonment imposed following his guilty plea conviction for possession of a
firearm by a convicted felon.               He challenges only the substantive
reasonableness of his sentence, arguing that it is greater than necessary to
satisfy the sentencing goals of 18 U.S.C. § 3553(a).




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-50031     Document: 00515157990     Page: 2   Date Filed: 10/15/2019


                                  No. 19-50031

      It is not necessary to decide whether plain error review applies because
Luna’s sentence can be affirmed under the ordinary abuse of discretion
standard. See United States v. Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008).
When reviewing a non-guidelines sentence for substantive reasonableness, we
consider “the totality of the circumstances, including the extent of any variance
from the Guidelines range, to determine whether, as a matter of substance, the
sentencing factors in section 3553(a) support the sentence.” United States v.
Gerezano-Rosales, 692 F.3d 393, 400 (5th Cir. 2012) (internal quotation marks
and citations omitted). We “give due deference to the district court’s decision
that the § 3553(a) factors, on a whole, justify the extent of the variance.” Id.
at 401 (internal quotation marks and citation omitted).
      The district court made an individualized assessment and concluded that
the 30-to-37-month guidelines range did not adequately take into account the
§ 3553(a) factors. Although Luna asserts that too much weight was given to
the circumstances of his offense and his criminal history, “the sentencing court
is free to conclude that the applicable Guidelines range gives too much or too
little weight to one or more factors, and may adjust the sentence accordingly
under § 3553(a).” United States v. Lopez-Velasquez, 526 F.3d 804, 807 (5th Cir.
2008) (internal quotation marks and citation omitted).        Luna’s arguments
amount to a disagreement with the district court’s weighing of the sentencing
factors, which “is not a sufficient ground for reversal.” United States v. Malone,
828 F.3d 331, 342 (5th Cir. 2016).          Although Luna’s 60-month term of
imprisonment is 23 months greater than the top of the guidelines range, we
have upheld much greater variances. See, e.g., United States v. Key, 599 F.3d
469, 475-76 (5th Cir. 2010); United States v. Brantley, 537 F.3d 347, 348-50
(5th Cir. 2008). Based on the totality of the circumstances, including the
significant deference that is given to the district court’s consideration of the



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    Case: 19-50031   Document: 00515157990    Page: 3   Date Filed: 10/15/2019


                               No. 19-50031

§ 3553(a) factors, Luna’s sentence is not substantively unreasonable.      See
Gerezano-Rosales, 692 F.3d at 400-01.
     The judgment of the district court is AFFIRMED.




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