     Case: 18-11209      Document: 00515051120         Page: 1    Date Filed: 07/26/2019




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

                                    No. 18-11209                            FILED
                                  Summary Calendar                      July 26, 2019
                                                                       Lyle W. Cayce
                                                                            Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOSE ELEUTERIO NAVA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:18-CR-62-1


Before BENAVIDES, GRAVES, and HO, Circuit Judges.
PER CURIAM: *
       Jose Eleuterio Nava appeals the 36-month sentence imposed following
his guilty-plea conviction for unlawful escape from custody in violation of 18
U.S.C. § 751(a).        Nava argues that this above-guidelines sentence is
substantively unreasonable and, further, that our caselaw declining to re-
weigh the statutory sentencing factors conflicts with both the demands of due
process and Supreme Court precedent. Because the latter argument is raised


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-11209

for the first time in Nava’s reply brief, we will not consider it. See Yohey v.
Collins, 985 F.2d 222, 225 (5th Cir. 1993).
      In 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).
A non-guidelines sentence is substantively unreasonable if it fails to reflect the
18 U.S.C. § 3553(a) sentencing factors in that 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).
      There is no merit to Nava’s assertion that the district court failed to
account for a significant sentencing factor because it did not consider certain
mitigating facts discussed by the defense at sentencing, namely his
sympathetic reasons for leaving custody, his good behavior while out of
custody, and his lack of violent conduct during the past 12 years. While the
district court did not specifically reference these arguments in its reasons,
there is no indication in the record that the district court did not consider them.
To the contrary, the district court expressly stated at sentencing that it had
considered Nava’s history and characteristics, the needs for adequate criminal
deterrence and the protection of the public from any further crimes by the
defendant, and all of the § 3553(a) factors. See § 3553(a)(1), (2)(B)-(C).
      Neither is there merit to Nava’s apparent contention that the district
court improperly gave significant weight to an improper factor by considering
his offense of unauthorized absence from community corrections, which he
committed at age 17. Even if it is assumed arguendo that this was a juvenile



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                                  No. 18-11209

adjudication and that the district court relied on it in sentencing Nava, we have
rejected the argument that a non-guidelines sentence based in part on
unscored juvenile adjudications took into account an improper sentencing
factor. See Smith, 440 F.3d at 709.
        Finally, Nava has failed to show that his sentence represents a clear
error of judgment in balancing the sentencing factors because the extent of the
variance was not justified by his criminal history. 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).           Where, as here, the
defendant has engaged in violent criminal conduct that has gone unscored, a
guidelines sentence may underrepresent the seriousness of his criminal history
and the likelihood that he will commit other crimes. See id. at 441. Nava has
failed to overcome the due deference owed to the district court’s decision that
the extent of the variance is justified by the statutory sentencing factors in this
case.   See id. at 437, 440-41 (upholding upward variance from guidelines
maximum of 18 months in prison to 27 months).
        In sum, Nava has failed to show that the district court abused its
discretion by imposing an above-guidelines sentence of 36 months in prison.
See id. at 440.      Rather, it appears that Nava is merely expressing his
disagreement with how the district court weighed 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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