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 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

March 31, 2020

Lyle W. Cayce

Clerk

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No. 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 sentence was substantively reasonable, 

this court considers “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 court’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 for 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 allocution, 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 sentence.” 

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

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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 

guidelines sentencing range was 57 months of imprisonment). This court

defers “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 was 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.

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