IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-51023

Summary Calendar

UNITED STATES OF AMERICA,

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.

United States Court of Appeals

Fifth Circuit

FILED

July 18, 2016

Lyle W. Cayce

Clerk

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No. 15-51023

2

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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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.

 Case: 15-51023 Document: 00513596440 Page: 3 Date Filed: 07/18/2016