     Case: 19-10060      Document: 00515133697         Page: 1    Date Filed: 09/26/2019




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

                                                                                  FILED
                                                                            September 26, 2019
                                    No. 19-10060
                                  Summary Calendar                             Lyle W. Cayce
                                                                                    Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MIGUEL JILBERTO VAZQUEZ-CHAVARRIA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:18-CR-175-1


Before KING, GRAVES, and WILLETT, Circuit Judges.
PER CURIAM: *
       On July 2, 2015, Miguel Jilberto Vazquez-Chavarria was discovered by
immigration authorities while in state custody. An immigration detainer was
placed on him, but his prosecution for illegal reentry into the United States
following deportation did not begin until approximately three years later, after
he had served his state sentence. Following his guilty plea on the illegal
reentry charge, Vazquez-Chavarria moved for a downward departure pursuant


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-10060

to Application Note 7 of the Commentary to U.S.S.G. § 2L1.2. The district
court denied the departure motion and, varying upwardly from the advisory
guidelines range, imposed a 72-month sentence of imprisonment. Vazquez-
Chavarria appeals, contending that his sentence is substantively unreasonable
because it did not give enough weight to the delay in the commencement of his
federal prosecution.
      Our review of a district court’s sentencing decision is limited to
determining whether a sentence is reasonable. Gall v. United States, 552 U.S.
38, 46 (2007). Generally, we review the substantive reasonableness of an
above-guidelines sentence for abuse of discretion. United States v. Key, 599
F.3d 469, 475 (5th Cir. 2010). Although Vazquez-Chavarria argues that an
objection is not required to preserve the issue, our precedent permits the
application of plain error review where, as here, the defendant fails to object
to his sentence. See United States v. Peltier, 505 F.3d 389, 390-92 (5th Cir.
2007). Because Vazquez-Chavarria’s substantive reasonableness challenge
fails even under the ordinary abuse of discretion standard, we will apply the
more lenient standard. See United States v. Rodriguez, 602 F.3d 346, 361 (5th
Cir. 2010).
      A non-guidelines sentence must be “reasonable under the totality of the
relevant statutory factors.” United States v. Brantley, 537 F.3d 347, 349 (5th
Cir. 2008) (internal quotation marks and citation omitted). “A non-Guideline
sentence unreasonably fails to reflect the statutory sentencing factors where it
(1) does not account for a factor that should have received significant weight,
(2) gives significant weight to an irrelevant or improper factor, or (3) represents
a clear error of judgment in balancing the sentencing factors.” United States
v. Smith, 440 F.3d 704, 708 (5th Cir. 2006). “In making this determination, we
must ‘give due deference to the district court’s decision that the [18 U.S.C.]



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                                  No. 19-10060

§ 3553(a) factors, on a whole, justify the extent of the variance.’” United States
v. Gerezano-Rosales, 692 F.3d 393, 401 (5th Cir. 2012) (quoting Gall, 552 U.S.
at 51).
      The record reflects that the district court considered and rejected
Vazquez-Chavarria’s request for sentencing leniency based on the delay in the
commencement of his federal prosecution. Further, in determining that an
upward variance was warranted, the district court took into account the
advisory guidelines sentencing range, the § 3553(a) sentencing factors, and the
information set forth in the Presentence Report concerning Vazquez-
Chavarria’s criminal history. The district court expressly considered Vazquez-
Chavarria’s repeated failure to abide by the immigration laws, his commission
of offenses involving violence against women, and the need to impose a
sentence that would protect the public from future crimes of the defendant and
provide adequate deterrence.
      The record thus does not reflect that the district court failed to account
for a factor that should have received significant weight, gave significant
weight to an irrelevant or improper factor, or committed a clear error of
judgment in balancing the § 3553(a) factors. See Smith, 440 F.3d at 708.
Vazquez-Chavarria’s arguments amount to a request for this court to reweigh
the § 3553(a) factors, which we will not do. See Gall, 552 U.S. at 51.
      Moreover, while the 72-month sentence in this case is nine months over
the top of the advisory guidelines sentencing range, we have upheld larger
variances or departures. See e.g., United States v. Rhine, 637 F.3d 525, 526,
529-30 (5th Cir. 2011); Key, 599 F.3d at 475-76; United States v. Smith, 417
F.3d 483, 492-93 (5th Cir. 2005). As a review of the record reveals no abuse of
discretion, the judgment of the district court is AFFIRMED.




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