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United States v. Juan Arvizu-Cruz , 655 F. App'x 245 ( 2016 )


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  •      Case: 15-51023      Document: 00513596440         Page: 1    Date Filed: 07/18/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-51023
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
July 18, 2016
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
JUAN PABLO ARVIZU-CRUZ,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:15-CR-330-1
Before DAVIS, JONES, and GRAVES, Circuit Judges.
PER CURIAM: *
Juan Pablo Arvizu-Cruz pleaded guilty to being unlawfully present in
the United States following removal. The district court sentenced him above
the guidelines range of 24 to 30 months of imprisonment to 50 months of
imprisonment and three years of supervised release. On appeal, Arvizu-Cruz
argues that his sentence of imprisonment is substantively unreasonable
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-51023    Document: 00513596440     Page: 2   Date Filed: 07/18/2016
No. 15-51023
because it is greater than necessary to meet the sentencing goals of
    18 U.S.C. § 3553
    (a).
The record does not support Arvizu-Cruz’s contention that the district
court erred by using his prior illegal reentry sentence, rather than the
guidelines range, as the “starting point and the initial benchmark.” Gall
v. United States,
    552 U.S. 38
    , 49 (2007).     Rather, the record reflects that
Arvizu-Cruz’s prior sentence was one of several factors the district court
considered in reaching its sentencing decision, and, in any event, we have held
that a district court is warranted in varying or departing upward from the
guidelines range based on the lack of deterrence provided by prior lenient
sentences. See United States v. Lee,
    358 F.3d 315
    , 328-29 (5th Cir. 2004).
Nor are we persuaded by Arvizu-Cruz’s argument that, in view of the
nonviolent nature of his illegal reentry offense, the 50-month sentence
overstates the seriousness of his offense, fails to provide just punishment, and
undermines respect for the law.     We have previously rejected substantive
reasonableness challenges based on the alleged lack of seriousness of illegal
reentry. See United States v. Juarez-Duarte,
    513 F.3d 204
    , 212 (5th Cir. 2008);
United States v. Aguirre-Villa,
    460 F.3d 681
    , 683 (5th Cir. 2006).
Arvizu-Cruz further contends that the 50-month sentence imposed by
the district court does not adequately reflect his history and characteristics.
He asserts that a sentence within the guidelines range would have been
sufficient given that he was raised in a poverty-stricken environment in Mexico
and came to the United States to find work. He argues that the district court’s
sentencing decision is greater than necessary to provide adequate deterrence,
protect the public, and provide educational or vocational training, medical
care, or other correctional treatment.
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No. 15-51023
We have previously held that “the sentencing court is free to conclude
that the applicable Guidelines range gives too much or too little weight to one
or more factors, and may adjust the sentence accordingly under § 3553(a).”
United States v. Lopez-Velasquez,
    526 F.3d 804
    , 807 (5th Cir. 2008) (internal
quotation marks and citation omitted). In essence, Arvizu-Cruz is seeking to
have his sentence vacated based on a reweighing of the § 3553(a) factors, which
is not within the scope of an appellate court’s review. See Gall,
    552 U.S. at 51
    .
There is nothing in the record that indicates that the district court did not
account for a factor that should have received significant weight, gave
significant weight to an irrelevant or improper factor, or made a clear error of
judgment in balancing the sentencing factors. See United States v. Smith,
    440 F.3d 704
    , 708 (5th Cir. 2006).      Finally, the extent of the variance was
reasonable. See Lopez-Velasquez,
    526 F.3d at 805-08
    ; United States v. Jones,
    444 F.3d 430
    , 433, 441-42 (5th Cir. 2006).
AFFIRMED.
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