     Case: 16-10816      Document: 00513972437           Page: 1   Date Filed: 04/28/2017




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

                                    No. 16-10816                               FILED
                                  Summary Calendar                         April 28, 2017
                                                                          Lyle W. Cayce
                                                                               Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff–Appellee,

versus

MANUEL FELIPE LOPEZ-MARTINEZ,

                                                 Defendant–Appellant.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:15-CR-277-1




Before JOLLY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM: *

       Manuel     Lopez-Martinez       appeals     his    48-month,     above-guidelines



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-10816

sentence for illegal reentry. See 8 U.S.C. § 1326. We affirm.

      A “court may . . . conclude in a particular case that a sentence within the
Guidelines range is not lengthy enough to serve the objectives of sentencing.”
United States v. Williams, 517 F.3d 801, 809 (5th Cir. 2008). Accordingly, a
court may impose either of two types of sentence that do not fall within an
advisory guidelines range—a departure, which is a sentence authorized by one
or more provisions of the Sentencing Guidelines, and a variance, which is a
sentence that finds no specific authorization in the Sentencing Guidelines.
United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008). Here, the court
imposed the sentence as a variance outside the guidelines sentencing system
and alternatively as a departure under U.S.S.G. § 4A1.3. Because we may
affirm the sentence as a variance, we pretermit Lopez-Martinez’s claim that
the sentence is unreasonable because the court procedurally erred in departing
based on misinterpretations of U.S.S.G. §§ 4A1.3 and 5K2.0. See United States
v. Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008).

      Lopez-Martinez’s sole argument for felling the variance sentence is that
it is not exactly the same sentence that would have been given had there been
no alleged misapplication of §§ 4A1.3 and 5K2.0. But § 4A1.3 was irrelevant
to the variance determination. See United States v. Mejia-Huerta, 480 F.3d
713, 723 (5th Cir. 2007). Section “4A1.3 applies only to departures—based on
unrepresentative criminal history—not to variances.” Id. And § 5K2.0 was not
even mentioned in the presentence report, by the district court, or by Lopez-
Martinez in the district court. Lopez-Martinez does not show that the court
was required to reason with § 4A1.3 in mind when varying in light of the
18 U.S.C. § 3553(a) factors as a whole, and his reliance on United States v.
Ibarra-Luna, 628 F.3d 712, 717 (5th Cir. 2010), is inapposite. Contrary to
Lopez-Martinez’s contention, Ibarra-Luna is not authority for requiring the


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                                  No. 16-10816

government to show that the court would have imposed the same sentence but
for an alleged § 4A1.3 error but, instead, is concerned with “an incorrect Guide-
lines calculation.” 628 F.3d at 717. Lopez-Martinez, however, did not object
to the calculation of the guidelines range in the district court and does not con-
tend on appeal that there was an incorrect calculation of the range. Also,
Lopez-Martinez omits any showing that the court was unentitled to impose a
variance sentence first and a departure sentence alternatively.

      The variance will stand if it is supported by the factors in § 3553(a). See
United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006). “[T]he Guidelines
range is but one factor for a sentencing judge to consider.” Williams, 517 F.3d
at 810. In reviewing the variance, we give due deference to the district court;
the fact that [we] might reasonably . . . conclude[ ] that a different sentence
was appropriate is insufficient to justify reversal.” Gall v. United States,
552 U.S. 38, 51 (2007).

      The district court gave extensive, cogent reasons for selecting the vari-
ance sentence, and Lopez-Martinez refutes none of them. Appropriately, the
court relied on several § 3553(a) factors in determining that an upward vari-
ance was warranted, including Lopez-Martinez’s history and characteristics,
the need to provide adequate deterrence to further recidivism, and the need to
protect the public from further crimes. See Mejia-Huerta, 480 F.3d at 723.
Thus, the decision to vary above the advisory range was based on permissible
factors that advanced the objectives set forth in § 3553(a)—i.e., the sentencing
decision was properly made “under the totality of the relevant statutory fac-
tors.” Brantley, 537 F.3d at 349 (internal quotation marks and citation omit-
ted); see Williams, 517 F.3d at 808–09; Smith, 440 F.3d at 707.

      AFFIRMED.



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