United States v. Javier Resendez , 608 F. App'x 297 ( 2015 )

Case: 14-20745 Document: 00513104813 Page: 1 Date Filed: 07/06/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-20745 FILED
Summary Calendar July 6, 2015
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JAVIER OLIVA RESENDEZ, also known as Javier Oliva-Resendez, also
known as Javier Ovliva Resendez,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:14-CR-491
Before DAVIS, SMITH, and WIENER, Circuit Judges.
PER CURIAM: *
Defendant-Appellant Javier Oliva Resendez (Oliva) appeals the above-
guidelines, 15-month sentence imposed for his illegal reentry conviction. He
contends that his sentence is substantively unreasonable and greater than
necessary to satisfy the 18 U.S.C. § 3553(a) factors. Oliva claims that the
district court accorded undue weight to his criminal history.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-20745 Document: 00513104813 Page: 2 Date Filed: 07/06/2015
No. 14-20745
We review the substantive reasonableness of a sentence for abuse of
discretion. Gall v. United States, 552 U.S. 38, 51 (2007). “A non-Guideline
sentence unreasonably fails to reflect the statutory sentencing factors where 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).
When imposing the upward variance at sentencing, the district court
cited Oliva’s two prior convictions for assault of a family member and other
evidence of repeated violent behavior by Oliva toward his common-law wife.
Oliva’s disagreement with the district court’s assessment of this factor is not
sufficient to show an abuse of discretion. See Gall, 552 U.S. at 51. Moreover,
a court may consider a defendant’s criminal history when imposing a non-
Guideline sentence, Smith, 440 F.3d at 709, even though that factor has been
incorporated into the Guidelines, United States v. Key, 599 F.3d 469, 475 (5th
Cir. 2010).
The extent of the variance, seven months above the upper guidelines
range of eight months, is within the range of variances that we have upheld.
See United States v. McElwee, 646 F.3d 328, 345 (5th Cir. 2011); Key, 599 F.3d
at 475-76. Given the deference that is due to a district court’s consideration of
the § 3553(a) factors, see Gall, 552 U.S. at 51, and the district court’s legitimate
reasons for its sentencing decision, Oliva has not demonstrated that the
sentence is substantively unreasonable, see Smith, 440 F.3d at 710.
The judgment of the district court is AFFIRMED.
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