IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-40757

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee, 

v.

ISMAEL VASQUEZ-FONSECA,

Defendant-Appellant. 

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:16-CR-318-1

Before KING, ELROD, and HIGGINSON, Circuit Judges. 

PER CURIAM:*

Ismael Vasquez-Fonseca was convicted, pursuant to his guilty plea, of 

illegal re-entry into the United States following removal. He was sentenced 

above the Guidelines range to 30 months of imprisonment. Vasquez-Fonseca 

now challenges his sentence, contending that the district court erred by 

imposing a sentence above the applicable Guidelines range. We AFFIRM. 

 

* Pursuant to Fifth 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should not be published and is not precedent except under the limited circumstances set forth 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 Fifth Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

March 20, 2018

Lyle W. Cayce

Clerk

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No. 17-40757

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At sentencing, the district court imposed an upward variance1 based on 

several of the 18 U.S.C. § 3553(a) factors, including Vasquez-Fonseca’s extreme 

behavior and dismissed or uncharged conduct; the need to promote respect for 

the law; the need to deter Vasquez-Fonseca from future criminal behavior; and 

the need to protect the public. In discussing the § 3553(a) factors, the district 

court expressed concern over Vasquez-Fonseca’s prior repeated re-entries into 

the United States, which culminated in several deportations or removals. 

Because of these repeated re-entries and the § 3553(a) factors, the district 

court imposed an above-Guidelines sentence of 30 months in custody without 

supervised release. 

Because Vasquez-Fonseca did not object to his sentence, we review for 

plain error. See United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008). 

To demonstrate plain error, Vasquez-Fonseca must show a forfeited error that 

is clear or obvious and that affects his substantial rights. See Puckett v. United 

States, 556 U.S. 129, 135 (2009). If he makes such a showing, we have the 

discretion to correct the error, but only if it “seriously affect[s] the fairness, 

integrity or public reputation of judicial proceedings.” See id. (citation 

omitted). 

Vasquez-Fonseca argues that the district court erred by imposing a nonGuidelines sentence based on the conclusion that his criminal-history category 

under the Guidelines did not appropriately reflect the gravity of his multiple 

prior arrests and convictions. According to Vasquez-Fonseca, the district court 

 

1 Vasquez-Fonseca is incorrect in referring to his sentence as an upward departure, 

as it is clear from the record that the district court imposed an upward variance from the 

Guidelines range. See United States v. Smith, 440 F.3d 704, 706–07 (5th Cir. 2006). Prior 

arrests cannot be the sole basis for an upward departure. See United States v. Jones, 444 

F.3d 430, 434 (5th Cir. 2006). However, we have upheld an upward variance pursuant to 18 

U.S.C. § 3553(a) that was based in part on a consideration of prior arrests. See United States 

v. Lopez-Velasquez, 526 F.3d 804, 807 (5th Cir. 2008).

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impermissibly considered prior arrests that did not result in convictions in 

order to enhance his sentence. 

In Lopez-Velasquez, 526 F.3d 804 (5th Cir. 2008), we held that the 

district court did not abuse its discretion in considering the defendant’s 11 

prior arrests when upwardly varying from the Guidelines range pursuant to 

§ 3553(a). 526 F.3d at 807. Moreover, “[i]t is well-established that prior 

criminal conduct not resulting in a conviction may be considered by the 

sentencing judge.” Id. Here, the district court based the upward variance not 

only on a § 3553(a) consideration of Vasquez-Fonseca’s unprosecuted illegal reentries but also on other § 3553(a) factors such as deterrence from further 

criminal conduct and the protection of the public. Vasquez-Fonseca fails to 

demonstrate that the district court clearly or obviously erred by considering 

information in the PSR regarding prior unprosecuted criminal conduct. See id. 

To the extent that Vasquez-Fonseca argues that a lesser sentence would 

have been sufficient to satisfy the sentencing objectives of § 3553(a)(2), his 

contention amounts to a request for a re-weighing of the sentencing factors. 

This we will not do. See United States v. McElwee, 646 F.3d 328, 343–44 (5th 

Cir. 2011). In addition, although Vasquez-Fonseca’s sentence is 16 months 

above the top of the advisory Guidelines range, we have upheld greater 

variances. See, e.g., United States v. Key, 599 F.3d 469, 471, 475–76 (5th Cir. 

2010); United States v. Jones, 444 F.3d 430, 433, 441–42 (5th Cir. 2006). 

Accordingly, under the totality of the circumstances and given the significant 

deference due a district court’s consideration of the § 3553(a) factors, VasquezFonseca has failed to demonstrate that the non-Guidelines sentence imposed 

constitutes error—whether plain or otherwise. See Puckett, 556 U.S. at 135; 

McElwee, 646 F.3d at 337, 344; Brantley, 537 F.3d at 349. 

AFFIRMED.

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