     Case: 14-40023      Document: 00512843999         Page: 1    Date Filed: 11/20/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                    No. 14-40023                                  FILED
                                  Summary Calendar                        November 20, 2014
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ROBERTO FLORES-BREWSTER,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:13-CR-935-1


Before BENAVIDES, SOUTHWICK, and COSTA, Circuit Judges.
PER CURIAM: *
       Roberto Flores-Brewster appeals the 60-month sentence imposed by the
district court following his guilty plea conviction for conspiracy to transport
illegal aliens within the United States. He argues that the district court
arbitrarily selected a 60-month sentence without considering incremental
increases for departures under the Guidelines. He asserts that the district
court abused its discretion in merely giving generic reasons for the sentence


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-40023     Document: 00512843999      Page: 2    Date Filed: 11/20/2014


                                      No. 14-40023

and then sentencing him to five times the sentence imposed on his
codefendants.
      Because Flores-Brewster failed to object to the sentence on the above
ground in the district court, review is limited to plain error. See United States
v. Peltier, 505 F.3d 389, 391 (5th Cir. 2007). To show plain error, the appellant
must show a forfeited error that is clear or obvious and that affects his
substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If the
appellant makes such a showing, this court has the discretion to correct the
error but only if it seriously affects the fairness, integrity, or public reputation
of judicial proceedings. Id.
      The district court imposed an upward variance, and not an upward
departure. A departure and a variance are separate and distinct sentencing
mechanisms. United States v. Jacobs, 635 F.3d 778, 782 (5th Cir. 2011). Thus,
any assertion that the district court erred in imposing an upward departure
under the Guidelines is meritless. See, e.g., United States v. Mejia-Huerta, 480
F.3d 713, 723 (5th Cir. 2007).
      After considering the arguments presented at sentencing and the
undisputed information contained in the Presentence Report, the district court
was free to conclude that the 18 U.S.C. § 3553(a) factors warranted an upward
variance. The district court specifically referred to Flores-Brewster’s criminal
history, including two fairly recent convictions for similar crimes involving
transporting illegal aliens, as well as many other types of criminal activity.
The district court stated that it was not convinced that Flores-Brewster would
not engage in the same conduct again.         The district court considered the
§ 3553(a) factors and determined that a sentence above the guidelines range
was necessary primarily to deter further criminal conduct, to provide for the
safety of the community, and also to promote respect for the law. Thus, the



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                                   No. 14-40023

record reflects that the district court’s decision to vary from the advisory
guidelines range was based on permissible factors that advanced the objectives
set forth in § 3553(a). See United States v. Lopez-Velasquez, 526 F.3d 804, 807
(5th Cir. 2008); United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006).
Because his codefendants had very little or no prior criminal history and had
different roles in the offense, they were not similarly situated to Flores-
Brewster.   Therefore, there were no unwarranted sentencing disparities
between sentences imposed on Flores-Brewster and his codefendants in the
instant case. See United States v. Heard, 709 F.3d 413, 435 (5th Cir.), cert.
denied, 134 S. Ct. 470 (2013); United States v. Candia, 454 F.3d 468, 476 (5th
Cir. 2006). Flores-Brewster has not shown any procedural error, plain or
otherwise, in the nonguidelines sentence imposed. See Peltier, 505 F.3d at 392.
      AFFIRMED.




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