     Case: 18-60347      Document: 00514779313         Page: 1    Date Filed: 01/02/2019




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

                                                                                 FILED
                                    No. 18-60347                           January 2, 2019
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

EFRAIN GARCIA-MONTERROSO,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 1:18-CR-22-1


Before SMITH, WIENER, and WILLETT, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant Efrain Garcia-Monterroso appeals the sentence
imposed following his conviction for illegal reentry into the United States after
a previous removal. The advisory guidelines range for imprisonment was zero
to six months and the statutory maximum term was two years. The district
court granted the Government’s motion for an upward variance and sentenced
Garcia-Monterroso to 13 months of imprisonment.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-60347    Document: 00514779313     Page: 2   Date Filed: 01/02/2019


                                 No. 18-60347

      Generally, we review a criminal sentence for reasonableness. Gall v.
United States, 552 U.S. 38, 46 (2007). We first determine whether the district
court committed any procedural errors, and if the district court’s decision is
procedurally sound, we will “consider the substantive reasonableness of the
sentence imposed under an abuse-of-discretion standard . . . tak[ing] into
account the totality of the circumstances.” Id. at 51.
      Garcia-Monterroso argues that the upward variance was procedurally
unreasonable because the district court did not adequately explain the extent
of and justification for the variance. However, the district court repeatedly
cited its consideration of the 18 U.S.C. § 3553(a) factors, including the nature
and circumstances of the offense, the need to promote respect for the law, and
deterrence.   The district court also cited those factors in reference to the
particular facts of Garcia-Monterroso’s case, notably his repeated removals
and reentries into the United States and the fact that he had previously
received warnings about returning to the United States. The district court
carefully articulated its reasons for imposing an upward variance, so it did not
impose a procedurally unreasonable sentence. See Gall, 552 U.S. at 46, 51;
United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005).
      Garcia-Monterroso also contends that the 13-month sentence is
substantively unreasonable because it is significantly above the top of the
guidelines range. He emphasizes his lack of criminal history and absence of
violent or antisocial behavior, and he claims that the district court placed too
much weight on his previous removals.
      Nothing in the record suggests that the district court did not account for
a factor that should have received significant weight, gave significant weight
to an improper or irrelevant factor, or made a clear error of judgment in
balancing the sentencing factors. See Gall, 552 U.S. at 46, 49-50; United States



                                       2
    Case: 18-60347    Document: 00514779313    Page: 3   Date Filed: 01/02/2019


                                No. 18-60347

v. Smith, 440 F.3d 704, 708 (5th Cir. 2006). The district court considered the
mitigating arguments raised by Garcia-Monterroso, but it concluded that a
variance was justified based on his decision to ignore the previous warnings
about returning to the United States, the need to deter him from future
criminal conduct, and to promote respect for the law. We will not have this
court reweigh those factors. See Gall, 552 U.S. at 51. We have affirmed similar
upward variances as substantively reasonable when the sentence did not
exceed the statutory maximum sentence. See, e.g., United States v. Key, 599
F.3d 469, 475-76 (5th Cir. 2010); United States v. Smith, 417 F.3d 483, 491-92
(5th Cir. 2005).
      Given the deference we owe to a district court’s consideration of the
§ 3553(a) factors and the district court’s clear reasons for its sentencing
decision, Garcia-Monterroso has not demonstrated that the sentence is
substantively unreasonable. See Gall, 552 U.S. at 51; Key, 599 F.3d at 475.
      AFFIRMED.




                                      3
