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United States v. Victor Mancha , 688 F. App'x 271 ( 2017 )


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  •      Case: 16-51051       Document: 00513970772         Page: 1     Date Filed: 04/27/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-51051                                 FILED
Summary Calendar                           April 27, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
VICTOR ALEJANDRO MANCHA,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:16-CR-174-1
Before BARKSDALE, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Victor Alejandro Mancha appeals his sentence of 36 months’
imprisonment following his guilty-plea conviction for illegal reentry after
deportation, in violation of
    8 U.S.C. § 1326
    . He contends the district court’s
upward variance from the advisory Sentencing Guidelines range of 8 to 14
months was substantively unreasonable. (He does not claim procedural error.)
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 16-51051     Document: 00513970772      Page: 2    Date Filed: 04/27/2017
No. 16-51051
Although the reasonableness of a sentence is ordinarily reviewed for
abuse of discretion, plain error review applies if the defendant fails to object in
district court. See Gall v. United States,
    552 U.S. 38
    , 51 (2007) (ordinarily
abuse of discretion); United States v. Broussard,
    669 F.3d 537
    , 546 (5th Cir.
2012) (without objection, plain error). As Mancha concedes, plain-error review
applies in this instance. (Mancha highlights a circuit split regarding whether
an objection to the reasonableness of a sentence is required to preserve the
issue. He raises this issue to preserve it for possible future review.)
Under the plain-error standard of review, Mancha must show a forfeited
plain (clear or obvious) error that affected his substantial rights. Puckett v.
United States,
    556 U.S. 129
    , 135 (2009). If he does so, we have the discretion
to correct the reversible plain error, but should do so only if it “seriously
affect[s] the fairness, integrity or public reputation of judicial proceedings”.
    Id.
    For the reasons that follow, Mancha fails to show reversible plain error.
Mancha contends his sentence is substantively unreasonable because it
is greater than necessary to achieve the goals of
    18 U.S.C. § 3553
    (a). He
maintains: his prior conviction for attempted abuse of a child was remote in
time; his other prior convictions were misdemeanors; his sentence overstates
the seriousness of illegal reentry; and his sentence fails to account for his
personal circumstances.
The court listened to urged mitigating factors regarding Mancha’s
motive for reentry and concluded the advisory Guidelines sentencing range
was inadequate, based on his criminal history. “A defendant’s criminal history
is one of the factors that a court may consider in imposing a non-Guideline
sentence.”   United States v. Smith,
    440 F.3d 704
    , 709 (5th Cir. 2006).
Moreover, because the court was aware of, and considered, the urged
mitigating factors when it imposed the sentence, Mancha’s contention that the
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No. 16-51051
sentence failed to account for his personal circumstances is without merit.
(Along that line, the court granted Mancha’s objection to the 12-level
enhancement recommended by the presentence investigation report for his
prior attempted child-abuse conviction; Mancha contended the conviction was
not a crime of violence.)
As for Mancha’s contention that his sentence overstates the seriousness
of his illegal-reentry offense, noting the act was non-violent, our court has
rejected that contention repeatedly. E.g., United States v. Aguirre-Villa,
    460 F.3d 681
    , 683 (5th Cir. 2006); United States v. Juarez-Duarte,
    513 F.3d 204
    ,
212 (5th Cir. 2008). Additionally, as to the upward variance to 36 months from
the advisory sentencing range of 8 to 14 months, our court has affirmed much
greater variances and departures in other cases. See, e.g., United States v.
McElwee,
    646 F.3d 328
    , 342–43 (5th Cir. 2011); United States v. Saldana,
    427 F.3d 298
    , 315–16 (5th Cir. 2005).
AFFIRMED.
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