     Case: 15-40095       Document: 00513186306         Page: 1     Date Filed: 09/09/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                     No. 15-40095
                                   Summary Calendar
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
                                                                          September 9, 2015
UNITED STATES OF AMERICA,
                                                                            Lyle W. Cayce
                                                                                 Clerk
                                                  Plaintiff - Appellee

v.

JUAN GARCIA-RODRIGUEZ, also known as Juan Mendoza-Zavala,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:14-CR-236-1


Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Juan Garcia-Rodriguez challenges the substantive reasonableness of his
120-month sentence, which was above the advisory sentencing range of 57 to
71 months under the Sentencing Guidelines.                  His underlying guilty-plea
conviction was for illegally reentering the United States after deportation, in
violation of 8 U.S.C. § 1326.




       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 15-40095     Document: 00513186306      Page: 2   Date Filed: 09/09/2015


                                  No. 15-40095

      Garcia contends: his sentence is greater than necessary to satisfy the
sentencing goals of 18 U.S.C. § 3553(a); and it reflects a clear error of judgment
in balancing those sentencing factors, claiming the court gave undue weight to
the need to protect the public based on Garcia’s record of assaulting
correctional officers. He maintains: regardless of whether he was dangerous
to correctional officers, that finding does not support the court’s inference that
an above-Guidelines sentence was needed to protect the general public.
      Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still properly calculate the advisory Guidelines-sentencing range for use in
deciding on the sentence to impose. Gall v. United States, 552 U.S. 38, 51
(2007). In that respect, for issues preserved in district court, its application of
the Guidelines is reviewed de novo; its factual findings, only for clear error.
E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). As
noted, Garcia does not claim procedural error, claiming only that the sentence
was substantively unreasonable.
      Although Garcia objected that his sentence was greater than necessary
to satisfy the goals of § 3553(a), the Government asserts his claim should
nevertheless be reviewed only for plain error because he failed to state the
specific issue on which he bases his challenge. In any event, because his
sentence can be affirmed under the usual abuse-of-discretion standard, we
need not decide whether the more strict plain-error standard applies.
      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”.



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    Case: 15-40095    Document: 00513186306     Page: 3   Date Filed: 09/09/2015


                                 No. 15-40095

United States v. Gerezano-Rosales, 692 F.3d 393, 400 (5th Cir. 2012) (citation
and internal quotation marks omitted). Contrary to Garcia’s claim, the court’s
finding an above-Guidelines sentence was necessary to protect the public was
not based solely on Garcia’s convictions for assaulting three correctional
officers. In addition to those assaults, Garcia had a prior murder conviction,
threatened to kill the wife and children of a correctional officer upon release,
and illegally reentered the United States merely five days after being deported,
following lengthy incarceration. Furthermore, in assessing Garcia’s sentence,
the court considered the “nature and circumstances of this particular
immigration offense”, Garcia’s “history and characteristics”, and “the type of
sentences available”, and concluded an upward deviation was warranted to
“protect the public”, to promote respect for the law, to provide a “just
punishment”, and “to afford adequate deterrence to criminal conduct”.
      Under the totality of the circumstances, including the significant
deference given to the court’s consideration of the § 3553(a) factors and the
court’s reasons for its sentencing decision, Garcia’s challenge fails. See, e.g.,
id. at 400–01.
      AFFIRMED.




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