United States v. David Rojas-Buenrostro , 587 F. App'x 219 ( 2014 )


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  •      Case: 14-40221      Document: 00512869012         Page: 1    Date Filed: 12/15/2014
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 14-40221
    c/w No. 14-40225
    United States Court of Appeals
    Fifth Circuit
    Summary Calendar                              FILED
    December 15, 2014
    Lyle W. Cayce
    UNITED STATES OF AMERICA,                                                       Clerk
    Plaintiff-Appellee
    v.
    DAVID ROJAS-BUENROSTRO,
    Defendant-Appellant
    Appeals from the United States District Court
    for the Southern District of Texas
    USDC No. 2:13-CR-929-1
    Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
    PER CURIAM: *
    David Rojas-Buenrostro (Rojas) is appealing the sentences imposed
    following his guilty plea to being found unlawfully present in the United States
    and the revocation of his supervised release for an earlier illegal reentry
    conviction.    He argues that the above-guidelines-range 40-month sentence
    imposed for the new illegal entry offense 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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-40221     Document: 00512869012     Page: 2   Date Filed: 12/15/2014
    No. 14-40221
    c/w No. 14-40225
    because the district court gave undue significant weight to the need for
    deterrence and protection of the public, which needs were met by the
    consecutively imposed 24-month revocation sentence. Further, he complains
    that the district court gave too much weight to his violent criminal history
    based on a 1993 conviction and failed to take into account that he was 50 years
    old and he had not committed any violent offenses since 1993.
    Rojas failed to object in the district court to the illegal reentry sentence
    on the specific grounds argued in this court and, therefore, review is limited to
    plain error. See Puckett v. United States, 
    556 U.S. 129
    , 135 (2009); United
    States v. Peltier, 
    505 F.3d 389
    , 391 (5th Cir. 2007). Sentences, whether inside
    or outside the Guidelines, are reviewed for reasonableness in light of the 18
    U.S.C. § 3553(a) factors. Gall v. United States, 
    552 U.S. 38
    , 51 (2007). A
    sentence is unreasonable if 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. Chandler, 
    732 F.3d 434
    , 437 (5th Cir.
    2013) (internal quotation and citations omitted).
    The record reflects that the district court considered Rojas’s mitigating
    arguments but appropriately relied on several § 3553(a) factors in determining
    that an above-guideline sentence was warranted, including Rojas’s criminal
    history and characteristics, the need to provide adequate deterrence to his
    further recidivism, and the need to protect the public from further crimes. The
    district court’s decision to vary 10 months above the advisory guidelines range
    was based on permissible factors that advanced the objectives set forth in
    § 3553(a). Further, the extent of the variance was not significant compared to
    other more substantial variances affirmed by the court. See United States v.
    Brantley, 
    537 F.3d 347
    , 349-50 (5th Cir. 2008); United States v. Lopez-
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    Case: 14-40221    Document: 00512869012     Page: 3   Date Filed: 12/15/2014
    No. 14-40221
    c/w No. 14-40225
    Velasquez, 
    526 F.3d 804
    , 807 (5th Cir. 2008). The fact that the district court
    imposed the revocation sentence to run consecutively to the 40-month sentence
    has no bearing on the reasonableness of the sentence for the most recent
    conviction.   See 
    Lopez-Velasquez, 526 F.3d at 808-09
    .           Rojas has not
    demonstrated that the district court committed clear or obvious error in
    imposing the 40-month sentence. See 
    Puckett, 556 U.S. at 135
    .
    Secondly, Rojas argues that his statutory maximum 24-month
    revocation sentence that was above the 8-14-month advisory policy statement
    range was substantively and plainly unreasonable. He again argues that the
    district court gave too much weight to deterrence, protection of the public, and
    his dated violent criminal history. Further, Rojas asserts that the lengthy
    consecutive sentence was unreasonable in light of the 40-month sentence
    imposed for the new offense.
    This court generally reviews a revocation of supervised release sentence
    under a plainly unreasonable standard. United States v. Warren, 
    720 F.3d 321
    ,
    326 (5th Cir. 2013). However, Rojas failed to object in the district court to the
    sentence on the specific grounds argued on appeal and, therefore, review is
    limited to plain error. See 
    Puckett, 556 U.S. at 135
    ; 
    Peltier, 505 F.3d at 391
    .
    Revocation sentences exceeding the guidelines range but not exceeding the
    statutory maximum have been upheld as a matter of routine against
    challenges that the sentences were substantively unreasonable. See 
    Warren, 720 F.3d at 332
    . Rojas’s 24-month sentence was not substantively or plainly
    unreasonable. See 
    Warren, 720 F.3d at 332
    ; United States v. Whitelaw, 
    580 F.3d 256
    , 265 (5th Cir. 2009). The district court did not commit clear or obvious
    error in imposing the sentence. See 
    Puckett, 556 U.S. at 135
    .
    The sentences are AFFIRMED.
    3