### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 17

- 40166 Summary Calendar

UNITED STATES OF AMERICA , Plaintiff

- Appellee

v. JOEL ARISTIGUE S ARANA

- RIVERA , Defendant

- Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 1:16

- CR

- 743

- 1

Before KING, ELROD, and HIGGINSON, Circuit Judges. PER CURIAM: * Joel Aristigue s Arana

- Rivera appeals his 42

- month sentence for illegally

re entering the United States after be ing deported. Citing 18 U.S.C. § 3553(a), t he district court impose d an upward variance of 15 months above the advisory guideline maximum to protect the public and to deter future criminal conduct. The court based the variance on the se riousness of Arana

- Rivera ’ s prior

* Pursuant to 5 TH C IR

. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED October 16, 2017

Lyle W. Cayce Clerk Case: 17-40166 Document: 00514197026 Page: 1 Date Filed: 10/16/2017No. 17

- 40166

2 Virginia convictions for aggravated malicious wounding, robbery, and burglary with a deadly weapon. All sentences are reviewed for reasonablen ess under an abuse

- of

discretion standard. Gall v. United States , 552 U.S. 38, 46 (2007); Rita v. United States , 551 U.S. 338, 351 (2007). Arana

- Rivera does not all e ge any procedural error, but contends only that the sentence is substantive ly unreasonabl e. See Gall , 552 U.S. at 51

. Accordingly, w e consider whether the sentence “(1) does not account for a factor that should have received significant weight, (2) gives significant weight to an irrele vant 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 marks and citation omitted). Still, w e “give due deference to the distr ict court’s decision that t he § 3553(a) factors, on a whole, justify the extent of the variance,” and reversal is not warranted even if we “might reasonably have concluded that a different sentence was appropriate.” Gall , 552 U.S. at 51. Arana

- Rivera asserts that the district c ourt did not give adeq uate weight to his youth at the time of the prior offenses. The court was aware of Arana

Rivera’s youth but reasonably concluded that he had “committed a pretty adult crime.” The court also heard and rejected an account of the crimi nal activity , in which defense counsel suggested that Arana

- Rivera was little more than a guilty bystander

. Although Arana

- Rivera denies asking us to reweigh the sentencing factors, he is necessarily asking us to substitute his assessment of those fact ors for the district court’s assessment, which is contrary to the deferential review dictated by Gall

. See Gall , 552 U.S. at 51. Further, the degree of deviation was comparable to or less than other above

- guideline sentences we have Case: 17-40166 Document: 00514197026 Page: 2 Date Filed: 10/16/2017No. 17

- 40166

3 affirmed. See United States v. Herrera

- Garduno , 519 F.3d 526, 531

- 32 (5th Cir. 2008) (collecting cases). In light of the deference due to the sentencing court, the sentence is not substantively unreasonable , and the judgment is AFFIRMED. See Gall , 552 U.S. at 51. Case: 17-40166 Document: 00514197026 Page: 3 Date Filed: 10/16/2017