     Case: 14-51256      Document: 00513126516         Page: 1    Date Filed: 07/23/2015




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

                                                                                  FILED
                                                                                July 23, 2015
                                    No. 14-51256
                                                                               Lyle W. Cayce
                                  Summary Calendar                                  Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ERIC IVAN MALDONADO-GUZMAN,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:14-CR-305-1


Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant Eric Ivan Maldonado-Guzman pleaded guilty to
illegal reentry following deportation. The district court sentenced him to 21
months of imprisonment, which was above the sentencing range under the
advisory Sentencing Guidelines.
       In his sole issue on appeal, Maldonado-Guzman challenges his above-
guidelines sentence as substantively unreasonable. He argues that the district


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-51256

court gave too much weight to his prior illegal reentry conviction and the need
to deter future criminal conduct.
      We review sentences for reasonableness. Gall v. United States, 552 U.S.
38, 51 (2007). An above-guidelines sentence is unreasonable if the district
court (1) did not account for a factor that should have received significant
weight, (2) gave significant weight to an irrelevant or improper factor, or (3)
made a clear error of judgment in balancing the sentencing factors. United
States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006). We must consider the
substantive reasonableness of the sentence based on the totality of the
circumstances, including the extent of any variance from the guidelines range.
United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008). “In making this
determination, [this court] must give due deference to the district court’s
decision that the [18 U.S.C.] § 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) (internal quotation marks and citation omitted).
      The record reflects that the district court heard counsel’s arguments in
favor of a within-guideline sentence.       That court noted that Maldonado-
Guzman’s prior illegal reentry conviction resulted in an 18-month sentence;
but despite this prison sentence, Maldonado-Guzman again illegally reentered
the United States. Based on this information, the district court made an
individualized assessment that a sentence within Maldonado-Guzman’s 10-to-
16 month guidelines range would not adequately deter him from engaging in
future criminal conduct. See United States v. Lopez-Velasquez, 526 F.3d 804,
807 (5th Cir. 2008) (“[T]he sentencing court is free to conclude that the
applicable Guidelines range gives too much or too little weight to one or more
factors, and may adjust the sentence accordingly under § 3553(a).” (internal
quotation marks and citation omitted)). Maldonado-Guzman has not shown



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                                No. 14-51256

that the district court committed clear error in balancing the sentencing
factors. See Smith, 440 F.3d at 708.
      Although Maldonado-Guzman complains that his 21-month sentence is
“excessive,” we have affirmed greater variances as substantively reasonable
when the sentencing court based its upward variance on permissible
considerations. See, e.g., United States v. Key, 599 F.3d 469, 475-76 (5th Cir.
2010) (upholding sentence of 216 months when guidelines range was 46 to 57
months); see also Brantley, 537 F.3d at 348-50 (upholding total sentence of 180
months when guidelines range was 41 to 51 months); United States v. Smith,
417 F.3d 483, 492 (5th Cir. 2005) (upholding sentence of 120 months when
guidelines range was 33 to 41 months). Here, the district court based its
upward variance on Maldonado-Guzman’s history and characteristics and the
need to impose a just sentence. See § 3553(a). Accordingly, we conclude that
the 21-month sentence, which was five months above the top of the sentencing
guidelines range of 10 to 16 months of imprisonment, is substantively
reasonable. See Smith, 440 F.3d at 708, 710.
      AFFIRMED.




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