     Case: 13-10942      Document: 00512623645         Page: 1    Date Filed: 05/08/2014




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


                                    No. 13-10942                                  FILED
                                  Summary Calendar                             May 8, 2014
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

FEDERICO DIAZ-NAVARRO,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:13-CR-44-1


Before STEWART, Chief Judge, and JOLLY and SOUTHWICK, Circuit
Judges.
PER CURIAM: *
       Federico Diaz-Navarro (Diaz) appeals the 36-month above-range
sentence imposed following his guilty plea conviction for reentering the United
States illegally after removal. We affirm.
       Diaz contends that the district court abused its discretion by
misapplying departure provisions of the Sentencing Guidelines.                               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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 13-10942    Document: 00512623645     Page: 2   Date Filed: 05/08/2014


                                 No. 13-10942

Government argues that the sentence is not a departure from the guidelines
sentencing range but is instead a variance above that range. Given that Diaz’s
“sentence was not unreasonable,” as explained below, we need not decide
whether it was authorized by the Guidelines or was a “non-Guidelines
sentence.” United States v. Jones, 444 F.3d 430, 441 (5th Cir. 2006).
      The characterization of a sentence is irrelevant “if the sentence imposed
was reasonable under the totality of the relevant statutory factors.” United
States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008) (quoting Jones, 444 F.3d
at 441). The district court considered the advisory guideline range and all the
factors mentioned in 18 U.S.C. § 3553(a). The court was of the opinion that a
sentence above the guidelines range was warranted based on the following:
Diaz’s history and characteristics and the nature and circumstances of the
offense; the need for the sentence to reflect the offense’s seriousness, promote
respect for the law, and provide just punishment; and the need to protect the
public from recidivism by Diaz.        “The record . . . demonstrates the
reasonableness of the district court’s conclusions.” Brantley, 537 F.3d at 349.
The offense of conviction was the type that Diaz had committed before and for
which he had been punished briefly before without apparent deterrent effect,
and his history of other crimes supported a conclusion that there was a risk of
recidivism. Diaz thus exhibited personal characteristics indicating “that a long
incarceration period was required to provide just punishment, to ensure
adequate deterrence, and to protect the public.” Brantley, 537 F.3d at 350.
      AFFIRMED.




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