     Case: 15-10221       Document: 00513346991         Page: 1     Date Filed: 01/19/2016




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

                                     No. 15-10221                                   FILED
                                   Summary Calendar                           January 19, 2016
                                                                               Lyle W. Cayce
                                                                                    Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

BERNARDO RODRIGUEZ-GALLEGOS, also known as Gumaro Vigil-
Rodriguez,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:13-CR-162


Before BARKSDALE, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM: *
       After being convicted in 2013 of illegally reentering the United States
after deportation, in violation of 8 U.S.C. § 1326(a) and (b)(2), Bernardo
Rodriguez-Gallegos was sentenced to 60 months’ imprisonment, an upward
variance from the advisory Guidelines sentencing range of 33 to 41 months.




       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 15-10221    Document: 00513346991     Page: 2   Date Filed: 01/19/2016


                                 No. 15-10221

The district court attributed the upward variance to, inter alia, Rodriguez’
serious and ongoing criminal history.
      Rodriguez appealed from his sentence, maintaining the Government
erred in failing to move for a third acceptance-of-responsibility point at
sentencing, which would have resulted in a lower advisory sentencing range:
30 to 37 months, rather than 33 to 41. United States v. Rodriguez-Gallegos,
581 F. App’x 378, 379 (5th Cir. 2014).
      In considering Rodriguez’ sentence, our court noted: “The district court’s
remarks convincingly demonstrate[d] that [it] would have imposed an upward
variance even if the sentencing reduction had been applied”.         Id. at 380
(internal quotation marks omitted). Nevertheless, because our court “c[ould]
not state with the requisite certainty that the sentence ultimately imposed was
not influenced in any way by the erroneous Guidelines calculation”, Rodriguez’
sentence was vacated, and the matter was remanded for resentencing. Id.
(internal quotation marks omitted).
      On remand, Rodriguez’ Pre-Sentence Investigation             Report was
amended, resulting in the above-described advisory sentencing range of 30 to
37 months. But, citing Rodriguez’ serious criminal history, the court adopted
the same reasons for an upward variance stated in the first sentencing hearing,
and again sentenced him to 60 months’ imprisonment. Rodriguez challenges
his sentence, contending it is unreasonable because it is greater than necessary
to satisfy the sentencing goals of 18 U.S.C. § 3553(a).
      Non-Guidelines sentences are reviewed for reasonableness, in the light
of the § 3553(a) factors. Gall v. United States, 552 U.S. 38, 51 (2007). In
analyzing a substantive-reasonableness challenge, we “consider the totality of
the circumstances, including the extent of any variance from the Guidelines




                                         2
    Case: 15-10221     Document: 00513346991     Page: 3   Date Filed: 01/19/2016


                                  No. 15-10221

[sentencing] range”. United States v. Brantley, 537 F.3d 347, 349 (5th Cir.
2008) (internal quotation marks omitted).
      The record reflects the district court did not: fail to account for a factor
that should have received significant weight; give weight to an improper or
irrelevant factor; or clearly err in balancing the § 3553(a) factors. E.g., United
States v. Chandler, 732 F.3d 434, 437 (5th Cir. 2013). Moreover, we defer to
district court’s determination that the § 3553(a) factors, on balance, justify the
extent of the upward variance imposed. See, e.g., id. at 437–38 (citing United
States v. Broussard, 669 F.3d 537, 551 (5th Cir. 2012)).
      AFFIRMED.




                                        3
