IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-40041

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

IVAN RIVERA-SOLIS,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:17-CR-1400-1

Before SMITH, WIENER, and WILLETT, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Ivan Rivera-Solis appeals the 60-month aboveguidelines sentence imposed in connection with his conviction for illegal 

reentry after deportation. He challenges the substantive reasonableness of his 

sentence, urging that the district court gave undue significant weight to the 

seriousness of a prior conviction for criminal sexual conduct. He notes that the 

 

* 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

July 30, 2018

Lyle W. Cayce

Clerk

 Case: 18-40041 Document: 00514577126 Page: 1 Date Filed: 07/30/2018
No. 18-40041

2

prior offense occurred several years ago, was unrelated to the instant offense, 

and the instant offense of illegal reentry was nonviolent.

In reviewing a non-guidelines sentence for substantive reasonableness, 

we consider “the totality of the circumstances, including the extent of any 

variance from the Guidelines range, to determine whether as a matter of 

substance, the sentencing factors in section 3553(a) support the sentence.” 

United States v. Gerezano-Rosales, 692 F.3d 393, 400 (5th Cir. 2012) (internal 

quotation marks and citation omitted). To the extent Rivera-Solis asks this 

court to reweigh the sentencing factors, he correctly acknowledges that the 

issue is foreclosed but nevertheless raises the issue only for possible further 

review. See United States v. Malone, 828 F.3d 331, 342 (5th Cir. 2016).

The district court commented on the seriousness of Rivera-Solis’s prior 

offense, but it also noted that Rivera-Solis had been removed from the United 

States on three previous occasions, but he continued to re-enter the country 

illegally. The court noted that the age of the prior conviction did not mitigate 

the court’s concern, considering the time Rivera-Solis actually served on the 

sentence imposed.

The district court also heard Rivera-Solis’s assertion that he returned to 

the country to help his children. Yet the record reflects that the court was not 

persuaded and that it relied on permissible 18 U.S.C. § 3553(a) factors in 

determining that an above-guidelines sentence was appropriate. That 

included the need (1) to promote respect for the law, (2) to provide adequate 

deterrence, and (3) to protect the public from further crimes. The sentencing

court’s decision to vary above the advisory guidelines range was based on 

permissible factors that advanced the objectives set forth in § 3553(a). See 

United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006).

 Case: 18-40041 Document: 00514577126 Page: 2 Date Filed: 07/30/2018
No. 18-40041

3

We recognize that the 60-month sentence is 33 months greater than the 

top of the guidelines range, but we have upheld much greater variances. See, 

e.g., United States v. Key, 599 F.3d 469, 475-76 (5th Cir. 2010); United States 

v. Brantley, 537 F.3d 347, 348-50 (5th Cir. 2008). Based on the totality of the 

circumstances, including the significant deference that is due to a district 

court’s consideration of the § 3553(a) factors, the sentence imposed was 

reasonable. See Gall, 552 U.S. at 50-53. AFFIRMED.

 Case: 18-40041 Document: 00514577126 Page: 3 Date Filed: 07/30/2018