     Case: 18-40041      Document: 00514577126         Page: 1    Date Filed: 07/30/2018




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

                                                                                  FILED
                                    No. 18-40041                              July 30, 2018
                                  Summary Calendar
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

IVAN RIVERA-SOLIS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:17-CR-1400-1


Before SMITH, WIENER, and WILLETT, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant Ivan Rivera-Solis appeals the 60-month above-
guidelines sentence imposed in connection with his conviction for illegal
reentry after deportation. He challenges the substantive reasonableness of his
sentence, urging that the district court gave undue significant weight to the
seriousness of a prior conviction for criminal sexual conduct. He notes that 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-40041    Document: 00514577126     Page: 2      Date Filed: 07/30/2018


                                 No. 18-40041

prior offense occurred several years ago, was unrelated to the instant offense,
and the instant offense of illegal reentry was nonviolent.
      In 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 citation omitted). To the extent Rivera-Solis asks this
court to reweigh the sentencing factors, he correctly acknowledges that the
issue is foreclosed but nevertheless raises the issue only for possible further
review. See United States v. Malone, 828 F.3d 331, 342 (5th Cir. 2016).
      The district court commented on the seriousness of Rivera-Solis’s prior
offense, but it also noted that Rivera-Solis had been removed from the United
States on three previous occasions, but he continued to re-enter the country
illegally. The court noted that the age of the prior conviction did not mitigate
the court’s concern, considering the time Rivera-Solis actually served on the
sentence imposed.
      The district court also heard Rivera-Solis’s assertion that he returned to
the country to help his children. Yet the record reflects that the court was not
persuaded and that it relied on permissible 18 U.S.C. § 3553(a) factors in
determining that an above-guidelines sentence was appropriate.                That
included the need (1) to promote respect for the law, (2) to provide adequate
deterrence, and (3) to protect the public from further crimes. The sentencing
court’s decision to vary above the advisory guidelines range was based on
permissible factors that advanced the objectives set forth in § 3553(a). See
United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006).




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                                No. 18-40041

      We recognize that the 60-month sentence is 33 months greater than the
top of the guidelines range, but 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 due to a district
court’s consideration of the § 3553(a) factors, the sentence imposed was
reasonable. See Gall, 552 U.S. at 50-53. AFFIRMED.




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