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

No. 19

- 40582 Summary Calendar

UNITED STATES OF AMERICA , Plaintiff

- Appellee

v. JOSE ALEXANDER GARCIA

- PEREIRA , Defendant

- Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 7:19

- CR

- 479

- 1

Before DAVIS, SMITH, and HIGGINSON, Circuit Judges. PER CURIAM: * Jose Alexander Garcia

- Pereira challenges the substantive reasonableness of his 24

- month sentence for illegal reentry. The presentence report calculated his advisory guidelines range as one to seven months of imprisonment. We review the substantive reasonableness of a sentence under

an abuse

- of

- discretion standard

. Gall v. United States , 552 U.S. 38, 51 (2007).

* 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 R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR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 March 31, 2020 Lyle W. Cayce Clerk Case: 19-40582 Document: 00515366829 Page: 1 Date Filed: 03/31/2020No. 19

- 40582

2 In imposing a sentence outside of the guidelines , the district court referenced factors that are applicable to both a sentence variance and a sentence departure. However, the specific characterization of the sentence is irrelevant if “the sentence imposed was reasonable under the totality of the relevant statutory factors.” United States v. Brantley , 537 F.3d 347, 349 (5th Cir. 2008). To determine whether the sente nce was substantively reasonable, this court consider s “the totality of the circumstances, including the extent of any variance from the Guidelines range.” Id. (internal quotation marks and citations omitted). According to Garcia

- Pereira, the district cou rt’s variance was substantively unreasonable because the district court made a clear error of judgment in balancing the sentencing factors. Specifically, he asserts that the court gave undue weight to his criminal history

— a single misdemeanor conviction f or sexual battery

— and gives insufficient weight to the fact that he had only one prior conviction and no prior convictions for illegal reentry. Garcia

- Pereira ’s arguments amount to a request for this court to reweigh the 18 U.S.C. § 3553(a) factors, which this court will not do as the district court is “in a superior position to find facts and judge their import under § 3553(a).” United States v. Campos

- Maldonado , 531 F.3d 337, 339 (5th Cir. 2008). The record reflects that the district court considered Garcia

- Pereira’s arguments at sentencing, as well as the Government’s arguments, the Guidelines range, and Garcia

- Pereira’s alloc u tion , and determined that an above

- guidelines sentence was merited in light of the factors listed in § 3553(a). The district court’s decision was based primarily on Garcia

- Pereira’s criminal history, and we have held that “[a] defendant’s criminal history is one of the factors that a court may consider in imposing a non

- Guideline s entence.” United States v. Smith , 440 F.3d 704, 709 (5th Cir. 2006). While the above

- Case: 19-40582 Document: 00515366829 Page: 2 Date Filed: 03/31/2020No. 19

- 40582

3 guidelines sentence in this case is 17 months greater than, or more than three times , the top of the advisory sentencing range, this court has upheld greater upward deviations. See e.g. , United States v. Rhine , 637 F. 3d 525, 528, 529

– 30 (5th Cir. 2011) (upholding non

- guidelines sentence of 180 months from a range of 30 to 37 months); United States v. Key , 599 F.3d 469, 475

– 76 (5th Cir. 2010) (upholding a sentence of 216 months of imprisonment where the top of the guide lines sentencing range was 57 months of imprisonment)

. This court defer s “to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance , ” even if we might “reasonably have concluded that a different sentence w as appropriate.” Gall , 552 U.S. at 51. Because Garcia

- Pereira shows no error in the imposition of his sentence, the judgment of the district court is AFFIRMED. Case: 19-40582 Document: 00515366829 Page: 3 Date Filed: 03/31/2020