     Case: 18-10421      Document: 00514737880         Page: 1    Date Filed: 11/27/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 18-10421                    United States Court of Appeals

                                  Summary Calendar
                                                                             Fifth Circuit

                                                                           FILED
                                                                   November 27, 2018

UNITED STATES OF AMERICA,                                             Lyle W. Cayce
                                                                           Clerk
                                                 Plaintiff-Appellee

v.

MARIO VERA-FLORES,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 5:17-CR-95-1


Before DAVIS, HAYNES, and GRAVES, Circuit Judges.
PER CURIAM: *
       Mario Vera-Flores appeals the 18-month, above-guidelines sentence
imposed following his guilty-plea conviction for illegal reentry into the United
States after removal. Vera-Flores argues that the sentence is substantively
unreasonable in that it represents a clear error in judgment by the district
court in balancing the 18 U.S.C. § 3553(a) sentencing factors.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 18-10421

      When reviewing a sentence for substantive reasonableness, we apply an
abuse of discretion standard, “regardless of whether the sentence imposed is
inside or outside the Guidelines range.” United States v. Fraga, 704 F.3d 432,
437 (5th Cir. 2013) (internal quotation marks, brackets, and citation omitted).
We “give due deference to the district court’s decision that the § 3553(a) factors,
on a whole, justify the extent of the variance.” Id. at 440 (internal quotation
marks and citation omitted). A non-guidelines sentence unreasonably fails to
reflect the § 3553(a) sentencing factors when, among other things, it
“represents a clear error of judgment in balancing the sentencing factors.”
United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006).
      In imposing the above-guidelines sentence, the district court expressly
stated that it had considered various § 3553(a) sentencing factors and made
specific reference to Vera-Flores’s criminal history and his two prior
convictions for driving while intoxicated. As we have explained, “a defendant’s
criminal history is one of the factors that a court may consider in imposing a
non-Guideline sentence.” Fraga, 704 F.3d at 440 (internal quotation marks,
brackets, and citation omitted). To the extent that Vera-Flores is asserting
that the district court erred in relying on factors already encompassed within
the guidelines, his argument is foreclosed. See United States v. Key, 599 F.3d
469, 475 (5th Cir. 2010). Finally, the extent of the variance in this case is not
excessive when compared to other affirmed variances.           See id. at 475-76
(upholding upward variance from guidelines maximum of 57 months to 216
months); Smith, 440 F.3d at 708-10 (affirming upward variance from
guidelines maximum of 27 months to 60 months).
      In sum, Vera-Flores has failed to point specifically to a clear error by the
district court in balancing the sentencing factors or otherwise abusing its
discretion by imposing the above-guidelines sentence. See id. at 708; Fraga,



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                                 No. 18-10421

704 F.3d at 437. Rather, it appears that Vera-Flores is merely expressing his
disagreement with how the district court balanced the § 3553(a) factors, which
“is not a sufficient ground for reversal.” United States v. Malone, 828 F.3d 331,
342 (5th Cir. 2016). The judgment of the district court is AFFIRMED.




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