     Case: 14-51072       Document: 00513082869         Page: 1     Date Filed: 06/17/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                     No. 14-51072
                                   Summary Calendar
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
                                                                             June 17, 2015
UNITED STATES OF AMERICA,
                                                                            Lyle W. Cayce
                                                                                 Clerk
                                                  Plaintiff - Appellee

v.

VICENTE MIRANDA-CUEVAS,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:14-CR-189-1


Before JOLLY, BARKSDALE, and OWEN, Circuit Judges.
PER CURIAM: *
       Vicente Miranda-Cuevas pleaded guilty to illegal reentry in 2014 after
deportation, in violation of 8 U.S.C. § 1326. He was sentenced above the
sentencing range under the advisory Sentencing Guidelines to 48 months’
imprisonment.
       Miranda challenges the substantive reasonableness of his sentence,
claiming it is greater than necessary to accomplish the 18 U.S.C. § 3553(a)


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 14-51072     Document: 00513082869      Page: 2    Date Filed: 06/17/2015


                                  No. 14-51072

sentencing goals. As part of his claim, Miranda asserts the district court
considered his state-criminal convictions, which were not used in computing
his criminal-history category for his sentencing range.
      Although post-Booker, the 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, Miranda
does not claim procedural error; he challenges only the substantive
reasonableness of his sentence. In that regard, a sentence outside of the
sentencing range is substantively 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. Smith, 440
F.3d 704, 708 (5th Cir. 2006) (citations omitted).
      For sentencing, the court considered the information in the presentence
investigation report, the advisory sentencing range, the parties’ oral
presentations, pertinent policy statements, and the § 3553(a) sentencing
factors.   (Factors considered by the court do not appear to have included
Miranda’s outdated state-criminal convictions that were, accordingly, not used
in computing his criminal-history category. But, if they were, this would not
constitute error. See Smith, 440 F.3d at 709.)
      Relying on Miranda’s prior 24-month and 30-month terms of
imprisonment for illegal reentry, the court made an individualized assessment



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                                   No. 14-51072

that a sentence within Miranda’s 10 to 16 months would not adequately deter
him from engaging in future criminal conduct. Additionally, his 48-month
term of imprisonment is significantly below the statutory maximum and
within the range of variances this court has affirmed as substantively
reasonable. See, e.g., United States v. Key, 599 F.3d 469, 475-76 (5th Cir. 2010)
(affirming a 216-month sentence where the sentencing-range maximum was
57 months).
      “[T]he sentencing court is free to conclude that the applicable Guidelines
[sentencing] 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) (citation and internal
quotation marks omitted). Miranda effectively requests this court to reweigh
the § 3553(a) sentencing factors, but we “must give due deference to the district
court’s decision that the § 3553(a) factors, on a whole, justify the extent of the
variance”. Gall, 552 U.S. at 51.
      AFFIRMED.




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