United States v. Arturo Garcia ( 2019 )

Case: 18-40875 Document: 00514956700 Page: 1 Date Filed: 05/14/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
No. 18-40875 May 14, 2019
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ARTURO LOPEZ GARCIA,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:18-CR-183-1
Before BENAVIDES, HAYNES, and WILLETT, Circuit Judges.
PER CURIAM: *
Arturo Lopez Garcia appeals the 36-month, above-guidelines sentence
imposed following his guilty plea conviction of illegal reentry after deportation.
He argues that the sentence is substantively unreasonable because the district
court gave too much weight to the 18 U.S.C. § 3553(a) sentencing factors of
deterrence and protection of the public.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-40875 Document: 00514956700 Page: 2 Date Filed: 05/14/2019
No. 18-40875
When reviewing a non-guidelines sentence for substantive
reasonableness, we “consider the totality of the circumstances, including the
extent of any variance from the Guidelines range, to determine whether, as a
matter of substance, the sentencing factors in section 3553(a) support the
sentence.” United States v. Gerezano-Rosales, 692 F.3d 393, 400 (5th Cir. 2012)
(internal quotation marks and citations 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 401 (internal quotation marks and citation
omitted).
Here, the district court made an individualized assessment and
concluded that the 18-to-24-month guidelines range did not adequately take
into account the § 3553(a) factors. See Gall v. United States, 552 U.S. 38, 50
(2007). 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 Lopez Garcia’s criminal history, the fact that he reentered
the United States less than one year after having been removed, and the fact
that he was a registered sex offender. Additionally, in addressing the extent
of the variance, the district court noted that this was Lopez Garcia’s first illegal
reentry conviction, that Lopez Garcia had made some attempts to change his
problems with alcoholism, and that it had considered defense counsel’s
arguments and the materials submitted in mitigation of sentencing.
Lopez Garcia’s argument amounts to a disagreement with the district
court’s weighing of the sentencing factors, which “is not a sufficient ground for
reversal.” United States v. Malone, 828 F.3d 331, 342 (5th Cir. 2016). He has
not shown the district court failed to consider any significant factors, gave
undue weight to any improper factor, or clearly erred in balancing the
sentencing factors. See United States v. Smith, 440 F.3d 704, 708 (5th Cir.
2
Case: 18-40875 Document: 00514956700 Page: 3 Date Filed: 05/14/2019
No. 18-40875
2006). Further, the extent of the variance in this case was within the range of
other variances affirmed by this court. See United States v. McElwee, 646 F.3d
328, 344-45 (5th Cir. 2011); United States v. Brantley, 537 F.3d 347, 348-50
(5th Cir. 2008). Lopez Garcia’s case does not warrant a different result,
especially given the significant deference owed to the district court’s
consideration of the § 3553(a) factors. See Gall, 552 U.S. at 51; Gerezano-
Rosales, 692 F.3d at 400-01.
The judgment of the district court is AFFIRMED.
3