     Case: 09-51100     Document: 00511195042          Page: 1    Date Filed: 08/05/2010




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

                                                 FILED
                                                                           August 5, 2010
                                     No. 09-51100
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

EVER RENE FUENTES-LOPEZ,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                             USDC No. 2:08-CR-1073-1


Before GARWOOD, PRADO and HAYNES, Circuit Judges.
PER CURIAM:*
        Ever Rene Fuentes-Lopez appeals his December 2009 sentence of twenty-
seven months of imprisonment, following his guilty plea conviction to illegal
reentry into the United States. He argues, as he did in the district court, that
the sentence, which exceeded his guideline range of fifteen to twenty-one months
under the United States Sentencing Commission’s Guidelines Manual




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-51100        Document: 00511195042 Page: 2             Date Filed: 08/05/2010
                                     No. 09-51100

(Sentencing Guidelines or Guidelines), is greater than necessary to satisfy the
sentencing goals of 18 U.S.C. § 3553(a).1
      We review sentences, whether inside or outside the Sentencing Guidelines
range, under the abuse of discretion standard for procedural error and
substantive reasonableness. Gall v. United States, 128 S.Ct. 586, 596-97 (2007).
Fuentes does not argue that the district court committed any procedural error,
so we need only review the substantive reasonableness of his sentence. See id.
      “A sentence is unreasonable if 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. Peltier, 505 F.3d 389, 392
(5th Cir. 2007) (internal quotation marks and citation omitted). In reviewing a
non-Guidelines sentence for substantive unreasonableness the review is for
abuse of discretion.          Gall at 597-98.        We consider 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). When determining
whether or not the Section 3553(a) factors support the sentence, we give
deference to a district court’s determination that they support a non-Guidelines
sentence. Id.



      1
          18 U.S.C. § 3553(a) provides, in relevant part:

        “(a) Factors to be considered in imposing a sentence.—The court shall
      impose a sentence sufficient, but not greater than necessary, to comply with the
      purposes set forth in paragraph (2) of this subsection. The court, in
      determining the particular sentence to be imposed, shall consider—
            (1) the nature and circumstances of the offense and the history and
          characteristics of the defendant;
            (2) the need for the sentence imposed—
                (A) to reflect the seriousness of the offense, to promote respect for the
              law, and to provide just punishment for the offense;
                (B) to afford adequate deterrence to criminal conduct;
                (C) to protect the public from further crimes of the defendant; and
                (D) to provide the defendant with needed educational or vocational
              training, medical care, or other correctional treatment in the most
              effective manner . . . .” 18 U.S.C.A. § 3553(a) (West 2000).

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                                 No. 09-51100

      Fuentes argues that his non-Guidelines sentence is substantively
unreasonable because the Sentencing Guidelines adequately accounted for his
prior criminal history. However, in United States v. Booker, 125 S.Ct. 738
(2005), the Supreme Court held that the Sentencing Guidelines were not
mandatory. In doing so, it implicitly rejected the position that a sentencing
court departing from the Guidelines under Section 3553(a) could give no
additional weight to factors included in calculating the Guidelines range, since
to do otherwise would essentially render the Guidelines mandatory. United
States v. Williams, 517 F.3d 801, 809 (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).” United States v. Lopez-Velasquez, 526 F.3d 804, 807 (5th Cir. 2008)
(internal quotation and citation omitted). Therefore, we find that Fuentes’s
argument is without merit.
      The district court’s oral and written reasons reflect that the court
considered the Guidelines, the policy statements, and the Section 3553(a)
factors, including the nature and circumstances of the offense of conviction,
Fuentes’s history and characteristics, and the need for the sentence to provide
adequate deterrence and to protect the public from further criminal conduct by
Fuentes. Specifically, the district court stated that:
      “The Court finds that the advisory guidelines are not adequate; that
      the defendant’s true assaultive behavior that he has reflected in the
      criminal history is not properly considered, the seriousness of his
      characteristics, his history; therefore, making this not the particular
      application of the guidelines to this case, not taking into account the
      seriousness of the case, because one of them is the categorization of
      how we consider the prior convictions. The Court finds for that
      reason and the need to protect the public and to provide a just
      sentence that the guidelines are not adequate in this case. Even
      though all the criminal history convictions technically counted in
      points, they don’t adequately reflect the seriousness of this
      defendant’s characteristics.”




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                                No. 09-51100

On this record, we see nothing to indicate that the 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.    Although the court gave a non-Guidelines
sentence, the extent by which the court varied from the Guidelines range was
relatively minor. Cf. Brantley, 537 F.3d at 348–50 (upholding a variance of more
than 250% from the guideline range).
      Accordingly, we hold that the district court did not abuse its discretion.
The sentence imposed “was reasonable under the totality of the relevant
statutory factors”. Brantley, 537 F.3d at 349 (internal quotation omitted). See
also Lopez-Velasquez, 526 F.3d at 807 (upholding an non-Guidelines sentence
based on the nature and characteristics of the defendant and his criminal
history). We affirm the judgment of the district court.
                                  AFFIRMED.




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