IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-10060

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

MIGUEL JILBERTO VAZQUEZ-CHAVARRIA,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:18-CR-175-1

Before KING, GRAVES, and WILLETT, Circuit Judges.

PER CURIAM:*

On July 2, 2015, Miguel Jilberto Vazquez-Chavarria was discovered by 

immigration authorities while in state custody. An immigration detainer was 

placed on him, but his prosecution for illegal reentry into the United States 

following deportation did not begin until approximately three years later, after 

he had served his state sentence. Following his guilty plea on the illegal 

reentry charge, Vazquez-Chavarria moved for a downward departure pursuant 

 

* 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

September 26, 2019

Lyle W. Cayce

Clerk

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No. 19-10060

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to Application Note 7 of the Commentary to U.S.S.G. § 2L1.2. The district 

court denied the departure motion and, varying upwardly from the advisory 

guidelines range, imposed a 72-month sentence of imprisonment. VazquezChavarria appeals, contending that his sentence is substantively unreasonable 

because it did not give enough weight to the delay in the commencement of his 

federal prosecution.

Our review of a district court’s sentencing decision is limited to 

determining whether a sentence is reasonable. Gall v. United States, 552 U.S.

38, 46 (2007). Generally, we review the substantive reasonableness of an 

above-guidelines sentence for abuse of discretion. United States v. Key, 599 

F.3d 469, 475 (5th Cir. 2010). Although Vazquez-Chavarria argues that an 

objection is not required to preserve the issue, our precedent permits the 

application of plain error review where, as here, the defendant fails to object 

to his sentence. See United States v. Peltier, 505 F.3d 389, 390-92 (5th Cir. 

2007). Because Vazquez-Chavarria’s substantive reasonableness challenge 

fails even under the ordinary abuse of discretion standard, we will apply the 

more lenient standard. See United States v. Rodriguez, 602 F.3d 346, 361 (5th 

Cir. 2010).

A non-guidelines sentence must be “reasonable under the totality of the 

relevant statutory factors.” United States v. Brantley, 537 F.3d 347, 349 (5th 

Cir. 2008) (internal quotation marks and citation omitted). “A non-Guideline 

sentence unreasonably fails to reflect the statutory sentencing factors where it 

(1) does not account for a factor that should have received significant weight, 

(2) gives significant weight to an irrelevant or improper factor, or (3) represents 

a clear error of judgment in balancing the sentencing factors.” United States 

v. Smith, 440 F.3d 704, 708 (5th Cir. 2006). “In making this determination, we

must ‘give due deference to the district court’s decision that the [18 U.S.C.] 

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§ 3553(a) factors, on a whole, justify the extent of the variance.’” United States 

v. Gerezano-Rosales, 692 F.3d 393, 401 (5th Cir. 2012) (quoting Gall, 552 U.S. 

at 51).

The record reflects that the district court considered and rejected 

Vazquez-Chavarria’s request for sentencing leniency based on the delay in the 

commencement of his federal prosecution. Further, in determining that an 

upward variance was warranted, the district court took into account the 

advisory guidelines sentencing range, the § 3553(a) sentencing factors, and the 

information set forth in the Presentence Report concerning VazquezChavarria’s criminal history. The district court expressly considered VazquezChavarria’s repeated failure to abide by the immigration laws, his commission 

of offenses involving violence against women, and the need to impose a 

sentence that would protect the public from future crimes of the defendant and 

provide adequate deterrence.

The record thus does not reflect that the district court failed to account 

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

weight to an irrelevant or improper factor, or committed a clear error of 

judgment in balancing the § 3553(a) factors. See Smith, 440 F.3d at 708.

Vazquez-Chavarria’s arguments amount to a request for this court to reweigh 

the § 3553(a) factors, which we will not do. See Gall, 552 U.S. at 51.

Moreover, while the 72-month sentence in this case is nine months over 

the top of the advisory guidelines sentencing range, we have upheld larger 

variances or departures. See e.g., United States v. Rhine, 637 F.3d 525, 526, 

529-30 (5th Cir. 2011); Key, 599 F.3d at 475-76; United States v. Smith, 417 

F.3d 483, 492-93 (5th Cir. 2005). As a review of the record reveals no abuse of 

discretion, the judgment of the district court is AFFIRMED.

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