IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-20544

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

CARLOS BONILLA-PONCE, also known as Carlos Roberto Bonilla Ponce, also

known as Carlos Bonilla Ponce, also known as Carlos Roberto Bonilla-Ponce,

also known as Carlos Bonilla, also known as Hector Juarez Leiba, 

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:11-CR-168-1

Before BENAVIDES, STEWART, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Carlos Bonilla-Ponce pleaded guilty, without the benefit of a plea

agreement, to being unlawfully present in the United States after having been

deported. His advisory guidelines sentencing range was 15 to 21 months of

imprisonment, but the court imposed a 33-month sentence, explaining that

Bonilla-Ponce received lenient sentences for his two previous illegal reentries

United States Court of Appeals

Fifth Circuit

F I L E D

May 29, 2012

Lyle W. Cayce

Clerk

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.

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No. 11-20544

but, despite promises that he would not reenter, he continued to flout the

immigration laws. Bonilla-Ponce challenges the sentence as substantively

unreasonable. Generally, this court reviews a sentence for reasonableness under

an abuse of discretion standard, taking into account the totality of the

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

v. Mondragon-Santiago, 564 F.3d 357, 360 (5th Cir. 2009). The Government

argues, however, that plain error review should apply, contending that

Bonilla-Ponce’s objection in the district court was insufficient to preserve the

issue for appellate review. However, we need not decide which standard of

review applies because Bonilla-Ponce cannot succeed even under the more

lenient abuse of discretion standard. See United States v. Rodriguez, 523 F.3d

519, 525 (5th Cir. 2008).

Where a district court varies upward from the guidelines range, this court

must determine whether the sentence “unreasonably fails to reflect” the 18

U.S.C. § 3553(a) sentencing factors. United States v. Smith, 440 F.3d 704, 708

(5th Cir. 2006). An above-guidelines sentence is unreasonable if it either “(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.” Id. We also

consider the extent of the variance from the guidelines range. United States v.

Brantley, 537 F.3d 347, 349 (5th Cir. 2008).

Bonilla-Ponce’s argument that his criminal history score accounted for his

past crimes and recidivism fails because the score did not take into account that

he continued to illegally reenter the country despite his promises not to do so

and despite the fact that lenient sentences had not deterred him. In any event,

a district court may vary upward based on factors already considered by the

guidelines. See United States v. Williams, 517 F.3d 801, 810-12 (5th Cir. 2008). 

As for his suggestion that his state and immigration detentions should have

operated to reduce his sentence and his argument that the district court

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No. 11-20544

overstated the seriousness of his offense, these complaints amount to a mere

disagreement with the weight the district court gave to the various sentencing

factors and thus are insufficient to warrant reversal. See Gall, 552 U.S. at 51

(explaining that appellate courts will not reweigh the sentencing factors). Even

if, as Bonilla-Ponce suggests, a shorter sentence would have been sufficient to

deter him, that is insufficient to warrant reversal given the wide discretion of

the district court. United States v. York, 600 F.3d 347, 361-62 (5th Cir. 2010). 

Finally, though Bonilla-Ponce argues generally that his sentence was disparate

from those of similar offenders, this argument fails because he provides no

information about particular aggravating or mitigating facts concerning any

other defendant. See United States v. Willingham, 497 F.3d 541, 544 (5th Cir.

2007).

Although the sentence represents a substantial increase from the

guidelines range, the district court was in the best position to judge

Bonilla-Ponce and the circumstances of the offense, and the reasons given by the

district court sufficiently support the sentence. See Williams, 517 F.3d at

812-13. The court tied the reasons for its sentence to specific facts and

particular § 3553(a) factors, which were sufficient to justify the extent of the

variance. The court made an individualized assessment and was free to

conclude, as it did, that in Bonilla-Ponce’s case, the guidelines range gave

insufficient weight to some of the sentencing factors, including the seriousness

of the offense and the need to protect the public and deter Bonilla-Ponce from

continuing to violate the law. See § 3553(a); Williams, 517 F.3d at 809. 

The judgment of the district court is AFFIRMED.

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