### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

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 a s 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, w i th o u t 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 , b u t the court imposed a 33-month sentence, explaining that Bonilla-Ponce received lenient sentences for his t w o previous illegal reentries U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D May29 , 20 12 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 11-20544 Document: 00511869401 Page: 1 Date Filed: 05/29/2012No. 11-20544

but, despite promises that he would not reenter, he c o n t inued to flout the immigration laws. Bonilla-Ponce challen g es the sentence as substantively unreasonable. Generally, thi s c o urt revi e w s a s e nt e nc e 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-Sa n t i a

go , 564 F.3d 357, 360 (5th Cir. 2009). The Government argues, however , th a t plain error review should apply, contending that Bonilla-Ponce’s objection in the distri c t c o u rt was insufficient to preserve the issue for appellate review. However, we need no t d e c i d e which standard of review applies because Bonilla-Ponce cannot succeed even under th e 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 t o r e f lect” 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 e i th e r “(1) d o e s 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

c l e a r e rror 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. 200 8). 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 t o il legally 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 distric t 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 a r gu m ent that the district court
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overstated the seriou s n e s s 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 , 3 6 1 -62 (5th Cir. 2010). Finally, though Bonilla-Ponce argues generally that his sentence was disparate from those o f s i m i l ar 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 represent s a substantial increase from the guidelines range, the district court was i n t h e best position to judge Bonilla-Ponce and the circumstances of the offense, and the reasons given by the district court sufficiently support the s e n t e n c e . See Williams , 517 F.3d at 812-13. The court tied the reasons for its s e n t e n c e t o specific facts and particular § 3553(a) factors, which were sufficient to justify the extent of the variance. The court made an i n dividualized assessment and was free to conclude, as it did, that in Bonilla-Ponce’s case, the gu i d e l i n e s range gave insufficient weight to some of the sentencing factors, including the seriousness of t h e o f f e n s e 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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