### 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, conten ding 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* Pursuant to Fifth Circuit Rule 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Fifth Circuit Rule 47.5.4.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 Case: 17-40757 Document: 00514394657 Page: 1 Date Filed: 03/20/2018No. 17

- 40757

2 At sentencing, the district court imposed an upward variance 1 based on several of the 18 U.S.C. § 3553(a) factors, including Vasquez

- Fonseca’s ex treme 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 , t he district court expres sed 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 sente nce 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 t hat affects his substantial righ ts. 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 reput ation of judicial proceedings.” See id

. (citation omitted). Vasquez

- Fonseca argues that the district court erred by imposing a non

Guidelines sentence based on the conclusion that his criminal

- history category und er 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 U nited 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). Case: 17-40757 Document: 00514394657 Page: 2 Date Filed: 03/20/2018No. 17

- 40757

3 impermissibly considered prior arrests that did not result in convictions in order to enhance his s entence. 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 , t he district court based the upward variance not only on a § 3553 (a) consideration of Vasquez

- Fonseca’s unprosecuted illegal re

entries 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 clea rly 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 § 35 53(a)(2), his contention amounts to a request for a re - weigh ing 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 t op 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 c ircumstances and given the significant deference due a district court’s consideration of the § 3553(a) factors, Vasquez

Fonseca has failed to demonstrate that the non - G uidelines sentence imposed constitutes error

— whether plain or otherwise. See Puckett , 5 56 U.S. at 135; McElwee , 646 F.3d at 337, 344; Brantley , 537 F.3d at 349. AFFIRMED. Case: 17-40757 Document: 00514394657 Page: 3 Date Filed: 03/20/2018