IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-40221

c/w No. 14-40225

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

DAVID ROJAS-BUENROSTRO,

Defendant-Appellant

Appeals from the United States District Court

for the Southern District of Texas

USDC No. 2:13-CR-929-1

Before DAVIS, CLEMENT, and COSTA, Circuit Judges.

PER CURIAM:*

David Rojas-Buenrostro (Rojas) is appealing the sentences imposed 

following his guilty plea to being found unlawfully present in the United States 

and the revocation of his supervised release for an earlier illegal reentry 

conviction. He argues that the above-guidelines-range 40-month sentence 

imposed for the new illegal entry offense is substantively unreasonable 

* 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

December 15, 2014

Lyle W. Cayce

Clerk

 

 Case: 14-40221 Document: 00512869012 Page: 1 Date Filed: 12/15/2014
No. 14-40221

c/w No. 14-40225

because the district court gave undue significant weight to the need for 

deterrence and protection of the public, which needs were met by the 

consecutively imposed 24-month revocation sentence. Further, he complains 

that the district court gave too much weight to his violent criminal history 

based on a 1993 conviction and failed to take into account that he was 50 years 

old and he had not committed any violent offenses since 1993.

Rojas failed to object in the district court to the illegal reentry sentence 

on the specific grounds argued in this court and, therefore, review is limited to 

plain error. See Puckett v. United States, 556 U.S. 129, 135 (2009); United 

States v. Peltier, 505 F.3d 389, 391 (5th Cir. 2007). Sentences, whether inside 

or outside the Guidelines, are reviewed for reasonableness in light of the 18 

U.S.C. § 3553(a) factors. Gall v. United States, 552 U.S. 38, 51 (2007). A 

sentence is unreasonable if 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. Chandler, 732 F.3d 434, 437 (5th Cir. 

2013) (internal quotation and citations omitted). 

The record reflects that the district court considered Rojas’s mitigating 

arguments but appropriately relied on several § 3553(a) factors in determining 

that an above-guideline sentence was warranted, including Rojas’s criminal 

history and characteristics, the need to provide adequate deterrence to his 

further recidivism, and the need to protect the public from further crimes. The

district court’s decision to vary 10 months above the advisory guidelines range 

was based on permissible factors that advanced the objectives set forth in 

§ 3553(a). Further, the extent of the variance was not significant compared to 

other more substantial variances affirmed by the court. See United States v. 

Brantley, 537 F.3d 347, 349-50 (5th Cir. 2008); United States v. Lopez2

 Case: 14-40221 Document: 00512869012 Page: 2 Date Filed: 12/15/2014
No. 14-40221

c/w No. 14-40225

Velasquez, 526 F.3d 804, 807 (5th Cir. 2008). The fact that the district court 

imposed the revocation sentence to run consecutively to the 40-month sentence 

has no bearing on the reasonableness of the sentence for the most recent 

conviction. See Lopez-Velasquez, 526 F.3d at 808-09. Rojas has not 

demonstrated that the district court committed clear or obvious error in 

imposing the 40-month sentence. See Puckett, 556 U.S. at 135.

Secondly, Rojas argues that his statutory maximum 24-month 

revocation sentence that was above the 8-14-month advisory policy statement 

range was substantively and plainly unreasonable. He again argues that the 

district court gave too much weight to deterrence, protection of the public, and 

his dated violent criminal history. Further, Rojas asserts that the lengthy 

consecutive sentence was unreasonable in light of the 40-month sentence 

imposed for the new offense.

This court generally reviews a revocation of supervised release sentence 

under a plainly unreasonable standard. United States v. Warren, 720 F.3d 321, 

326 (5th Cir. 2013). However, Rojas failed to object in the district court to the 

sentence on the specific grounds argued on appeal and, therefore, review is 

limited to plain error. See Puckett, 556 U.S. at 135; Peltier, 505 F.3d at 391. 

Revocation sentences exceeding the guidelines range but not exceeding the 

statutory maximum have been upheld as a matter of routine against 

challenges that the sentences were substantively unreasonable. See Warren, 

720 F.3d at 332. Rojas’s 24-month sentence was not substantively or plainly 

unreasonable. See Warren, 720 F.3d at 332; United States v. Whitelaw, 580 

F.3d 256, 265 (5th Cir. 2009). The district court did not commit clear or obvious 

error in imposing the sentence. See Puckett, 556 U.S. at 135.

The sentences are AFFIRMED.

3

 Case: 14-40221 Document: 00512869012 Page: 3 Date Filed: 12/15/2014