     Case: 16-10149      Document: 00514196668         Page: 1    Date Filed: 10/16/2017




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

                                      No. 16-10149                              FILED
                                                                          October 16, 2017
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk

                                                 Plaintiff-Appellee

v.

LUIS ENRIQUE BELTRAN-CERVANTES,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:15-CR-211-1


Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM: *
       Luis Enrique Beltran-Cervantes pleaded guilty to illegal reentry
following deportation. The Guidelines range for his offense was 10 to 16
months.     Rather than impose a sentence within that advisory range, the
district court sentenced Beltran to 72 months in prison.
       In explaining why it imposed the above-Guidelines sentence, the district
court cited a number of the sentencing factors that Congress directed federal
judges to consider, including the history and characteristics of the defendant,


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-10149     Document: 00514196668     Page: 2   Date Filed: 10/16/2017


                                  No. 16-10149

nature and circumstances of the offense, and need to protect the public from
further crimes. 18 U.S.C. § 3553. In explaining why it believed those factors
supported a significant upward variance, the court cited Beltran’s “very violent
criminal past,” his gang membership, and his two prior illegal reentries into
the United States. In terms of Beltran’s history of violence, the court discussed
the details of Beltran’s juvenile conviction for a violent assault. It then noted
that he also had an assault conviction as an adult for punching the father of
his girlfriend in the face and then pulling a knife on the father and trying to
cut him when the father tried calling the police. Beltran received no criminal
history points for the assault convictions. The same was true for a harassment
conviction based on Beltran’s threatening to kill his girlfriend. Beltran also
received no criminal history points for a contempt of court conviction. The
court noted the failure of the Guidelines to account for those convictions (either
because they were too old or the sentence was too brief). The court also cited
a separate contempt conviction for which Beltran did receive criminal history
points, as well as two other convictions also included in the criminal history
scoring: marijuana possession and a prior illegal reentry. The court further
noted that while incarcerated for that federal reentry felony, Beltran violated
three prison rules.     The infractions were for possession of homemade
intoxicants, insolence to a staff member, and assault without serious injury.
These disciplinary violations occurred while Beltran was serving a 24-month
sentence for his first illegal reentry offense. That earlier sentence was itself
an upward variance, a factor the district court mentioned three times in
explaining the need for another upward variance that would prevent Beltran
from committing additional crimes. Finally, the court noted that the prior
immigration conviction involved not just Beltran’s unlawful presence in the




                                        2
    Case: 16-10149     Document: 00514196668     Page: 3   Date Filed: 10/16/2017


                                  No. 16-10149

United States, but his lying to an immigration officer and presenting false
papers.
      Beltran acknowledges that the district court provided reasons for its
variance, but argues those do not justify the extent of the variance that
resulted in a 72-month sentence that was more than four times greater than
the top of the advisory Guidelines range. He also contends that many of the
considerations the district court cited to explain the sentence were already
taken into account by the criminal history section of the Guidelines.
      In assessing whether a district court abused its discretion in imposing a
non-Guidelines sentence, we consider “the totality of the circumstances,
including the extent of any variance from the Guidelines range.” United States
v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008). As Beltran emphasizes, a “major
deviation from the Guidelines range requires a greater justification than a
minor one.” United States v. Fraga, 704 F.3d 432, 440 (5th Cir. 2013); see also
United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006) (explaining that the
“farther a sentence varies from the applicable Guidelines sentence, ‘the more
compelling the justification based on factors in section 3553(a)’ must be”
(quoting United States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005))). Even with
substantial variances, however, we give considerable “deference to the district
court’s decision that the § 3553(a) factors, on a whole, justify the extent of the
variance.” United States v. Broussard, 669 F.3d 537, 551 (5th Cir. 2012)
(quoting Gall v. United States 552 U.S. 38, 51 (2007)).
      We have affirmed sentences in which the extent of the upward variance
was similar to, even if slightly less than, the one the imposed here. See, e.g.,
United States v. Urbina, 542 F. App’x 398, 399 (5th Cir. 2013) (affirming a 60-
month sentence, when the high end of the Guidelines range was 14 months);
United States v. Toropkin, 517 F. App’x 243, 245–46 (5th Cir. 2013) (affirming



                                        3
    Case: 16-10149     Document: 00514196668      Page: 4   Date Filed: 10/16/2017


                                  No. 16-10149

a 24-month sentence when the high end of the Guidelines was six months);
Brantley, 537 F.3d at 349–50 (affirming a 180-month sentence when the high
end of the Guidelines range was 51 months); United States v. Mejia-Huerta,
480 F.3d 713, 723 (5th Cir. 2007) (affirming a 120-month sentence when the
high end of the Guidelines range was 27 months); United States v. Ellis, 206
F. App’x 325, 327 (5th Cir. 2006) (affirming a 96-month sentence when the high
end of the Guidelines range was 27 months). And there is at least one case in
which we affirmed a substantially greater variance. United States v. Hebert,
813 F.3d 551, 561–63 (5th Cir. 2015) (affirming a 92-year sentence when the
high end of the Guidelines was 7 years).
      Those cases demonstrate that even with a substantial variance, the
ultimate question in a challenge to the substantive reasonableness of a
sentence is whether the district court articulated “individualized, case-specific
reasons” that justified the higher sentence. United States v. Diehl, 775 F.3d
714, 724 (5th Cir. 2015) (quoting United States v. McElwee, 646 F.3d 328, 338
(5th Cir. 2011)). It did so here. The district court extensively discussed not just
the number of Beltran’s prior convictions, but the often violent conduct that
gave rise to them. It also focused on the various ways in which Beltran flouted
the criminal justice system: he sustained two convictions for contempt, lied and
presented fake documents to immigration officers, and committed three
infractions while in federal custody.       Finally, and seemingly of greatest
significance to the district court, the above-Guidelines sentence for Beltran’s
first illegal reentry conviction failed to “convince the Defendant not to continue
to violate the law.” It was not unreasonable to conclude that a greater variance
was needed the second time around to provide the deterrence that the first
sentence did not achieve.




                                        4
    Case: 16-10149    Document: 00514196668     Page: 5   Date Filed: 10/16/2017


                                 No. 16-10149

      We also reject both the factual and legal premise of Beltran’s argument
that the district court impermissibly based the variance on his criminal history
that was already accounted for in the Guidelines. In explaining the reasons
for its variance, the district court relied on much besides the convictions that
received criminal history points.    It cited convictions that did not receive
criminal history points, violations of prison rules, and the failure of the prior
illegal reentry sentence to deter Beltran. In any event, a “district court may
rely upon factors already incorporated by the Guidelines to support a non-
Guidelines sentence.”    Brantley, 537 F.3d at 350; see also United States
Williams, 517 F.3d 801, 809 (5th Cir. 2008) (“The Supreme Court’s decision in
Booker implicitly rejected the position that no additional weight could be given
to factors included in calculating the applicable advisory Guidelines range,
since to do otherwise would essentially render the Guidelines mandatory.”).
      The district court did not abuse its discretion in sentencing Beltran to 72
months in prison. Its judgment is AFFIRMED.




                                       5
