IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-60347

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

EFRAIN GARCIA-MONTERROSO,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 1:18-CR-22-1

Before SMITH, WIENER, and WILLETT, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Efrain Garcia-Monterroso appeals the sentence 

imposed following his conviction for illegal reentry into the United States after 

a previous removal. The advisory guidelines range for imprisonment was zero 

to six months and the statutory maximum term was two years. The district 

court granted the Government’s motion for an upward variance and sentenced 

Garcia-Monterroso to 13 months of imprisonment.

 

* 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

January 2, 2019

Lyle W. Cayce

Clerk

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No. 18-60347

2

Generally, we review a criminal sentence for reasonableness. Gall v. 

United States, 552 U.S. 38, 46 (2007). We first determine whether the district 

court committed any procedural errors, and if the district court’s decision is 

procedurally sound, we will “consider the substantive reasonableness of the 

sentence imposed under an abuse-of-discretion standard . . . tak[ing] into 

account the totality of the circumstances.” Id. at 51.

Garcia-Monterroso argues that the upward variance was procedurally 

unreasonable because the district court did not adequately explain the extent 

of and justification for the variance. However, the district court repeatedly 

cited its consideration of the 18 U.S.C. § 3553(a) factors, including the nature 

and circumstances of the offense, the need to promote respect for the law, and 

deterrence. The district court also cited those factors in reference to the 

particular facts of Garcia-Monterroso’s case, notably his repeated removals 

and reentries into the United States and the fact that he had previously 

received warnings about returning to the United States. The district court 

carefully articulated its reasons for imposing an upward variance, so it did not 

impose a procedurally unreasonable sentence. See Gall, 552 U.S. at 46, 51; 

United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005).

Garcia-Monterroso also contends that the 13-month sentence is 

substantively unreasonable because it is significantly above the top of the 

guidelines range. He emphasizes his lack of criminal history and absence of 

violent or antisocial behavior, and he claims that the district court placed too 

much weight on his previous removals.

Nothing in the record suggests that the district court did not account for 

a factor that should have received significant weight, gave significant weight 

to an improper or irrelevant factor, or made a clear error of judgment in 

balancing the sentencing factors. See Gall, 552 U.S. at 46, 49-50; United States 

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No. 18-60347

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v. Smith, 440 F.3d 704, 708 (5th Cir. 2006). The district court considered the 

mitigating arguments raised by Garcia-Monterroso, but it concluded that a

variance was justified based on his decision to ignore the previous warnings 

about returning to the United States, the need to deter him from future 

criminal conduct, and to promote respect for the law. We will not have this 

court reweigh those factors. See Gall, 552 U.S. at 51. We have affirmed similar 

upward variances as substantively reasonable when the sentence did not 

exceed the statutory maximum sentence. See, e.g., United States v. Key, 599 

F.3d 469, 475-76 (5th Cir. 2010); United States v. Smith, 417 F.3d 483, 491-92 

(5th Cir. 2005).

Given the deference we owe to a district court’s consideration of the 

§ 3553(a) factors and the district court’s clear reasons for its sentencing 

decision, Garcia-Monterroso has not demonstrated that the sentence is 

substantively unreasonable. See Gall, 552 U.S. at 51; Key, 599 F.3d at 475.

AFFIRMED.

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