### 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 above

guidelines sentence imposed in connection with his conviction for illegal reentry after deportation. He challenges the substantive reasonableness of his sentence, urg ing that the district court gave undue signi ficant weight to the seriousness of a prior conviction fo r criminal sexual conduct. He notes that the

* 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 R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR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 July 30, 2018 Lyle W. Cayce Clerk Case: 18-40041 Document: 00514577126 Page: 1 Date Filed: 07/30/2018No. 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 t he 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). T he district court commented on the seriousness of Rivera

- Solis’s prior offense, but it also noted t hat 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 River a - 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 includ ed 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 wa s based on permissible factors that ad vanced 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: 07/30/2018No. 18

- 40041

3 We recognize that the 60

- month sentence is 3 3 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 totalit y 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