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United States v. Bernal ( 2021 )


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  • Case: 20-50710     Document: 00515777747         Page: 1     Date Filed: 03/12/2021
United States Court of Appeals
for the Fifth Circuit                          United States Court of Appeals
Fifth Circuit
FILED
March 12, 2021
No. 20-50710
Lyle W. Cayce
Summary Calendar                         Clerk
United States of America,
Plaintiff—Appellee,
versus
Olga Leija Bernal,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:19-CR-3280-1
Before Haynes, Willett, and Ho, Circuit Judges.
Per Curiam:*
Olga Leija Bernal pleaded guilty, without the benefit of a plea
agreement, to making a false statement or representation to an agency or
department of the United States in violation of
    18 U.S.C. § 1001
    (a)(2). The
district court sentenced Bernal to nine months in prison, which was above
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-50710     Document: 00515777747           Page: 2   Date Filed: 03/12/2021
No. 20-50710
the advisory sentencing guidelines range of zero to six months in prison. On
appeal, Bernal asserts that her term of imprisonment is substantively
unreasonable as it is greater than necessary to achieve the goals of
    18 U.S.C. § 3553
    (a).
Although Bernal did not specifically object to the substantive
reasonableness of her sentence after it was imposed, she arguably did seek a
sentence lower than the one ultimately imposed. Out of an abundance of
caution, we will analyze Bernal’s substantive reasonableness claim as though
error was preserved. See Holguin-Hernandez v. United States,
    140 S. Ct. 762
    ,
764-67 (2020); United States v. Holguin-Hernandez,
    955 F.3d 519
    , 520 n.1 (5th
Cir. 2020) (opinion on remand).
This court reviews sentences, whether inside or outside the
Guidelines, for reasonableness in light of the sentencing factors set forth in
§ 3553(a) and reviews the substantive reasonableness of a sentence under a
deferential abuse-of-discretion standard. Gall v. United States,
    552 U.S. 38
    ,
46-47, 49-51 (2007). A sentence is not unreasonable merely because a
different sentence would also have been appropriate.
    Id. at 51
    .
The record demonstrates that the district court assessed the facts and
arguments of the parties and determined that a sentence within the advisory
guidelines range was insufficient to achieve the sentencing goals set forth in
§ 3553(a). The district court further adopted the PSR and considered the
advisory sentencing guidelines range, the policy statements of the
Guidelines, and the § 3553(a) sentencing factors, specifically noting the
nature and circumstances of the offense, the seriousness of the offense, the
history and characteristics of the defendant, and the need for the sentence to
promote respect for the law, provide just punishment for the offense, and
afford adequate deterrence from crime.
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Case: 20-50710      Document: 00515777747          Page: 3   Date Filed: 03/12/2021
No. 20-50710
Bernal’s arguments on appeal constitute a disagreement with the
district court’s weighing of the § 3553(a) factors and correctness of the
sentence imposed. This disagreement does not show error in connection
with her sentence, nor does it show that the sentence imposed was not
reasonable. See Gall,
    552 U.S. at 51
    ; United States v. Malone,
    828 F.3d 331
    ,
342 (5th Cir. 2016); United States v. Lopez-Velasquez,
    526 F.3d 804
    , 807 (5th
Cir. 2008). Furthermore, this court does not reweigh the § 3553(a) factors
and reexamine their relative import, nor will it reverse the district court on
the basis that this court could reasonably conclude that a different sentence
was proper. See Gall,
    552 U.S. at 51
    ; United States v. McElwee,
    646 F.3d 328
    ,
344 (5th Cir. 2011). Bernal’s sentence is supported by numerous § 3553(a)
factors and is within the statutory maximum. See § 1001(a).
As to the extent of the variance, Bernal’s nine-month sentence is three
months greater than the top of her advisory guidelines range, and this court
has upheld much greater variances. See United States v. Key,
    599 F.3d 469
    ,
471-72, 475-76 (5th Cir. 2010); United States v. Herrera-Garduno,
    519 F.3d 526
    , 531-32 (5th Cir. 2008); United States v. Smith,
    417 F.3d 483
    , 485, 492
(5th Cir. 2005). Given the significant deference that is due a district court’s
consideration of the § 3553(a) factors, Bernal has not demonstrated that the
district court committed any error in imposing her above-guidelines
sentence. See Gall,
    552 U.S. at 50-53
    .
The district court’s judgment is AFFIRMED.
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