### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 16

- 51051 Summary Calendar

UNITED STATES OF AMERICA , Plaintiff

- Appellee

v.
VICTOR ALEJANDRO MANCHA , Defendant

- Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 4:16

- CR

- 174

- 1

Before BARKSDALE, HAYNES, and HIGGINSON, Circuit Judges. PER CURIAM: * Victor Alejandro Mancha appeals his sentence of 36 months ’ im prisonment following his guilty

- plea conviction for illegal reentry after deportation , in violation of 8 U.S.C. § 1326. He contends the district court’s upward variance from the advisory S entencing G uidelines range of 8 to 14 months was substantively unreasonable. (He does not claim procedural error.)

* Pursuant to 5th Cir. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R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 April 27, 2017 Lyle W. Cayce Clerk Case: 16-51051 Document: 00513970772 Page: 1 Date Filed: 04/27/2017No. 16

- 51051

2 Although the reasonableness of a senten ce is ordinarily reviewed for abuse of discretion, plain error review applies if the defendant fails to object in district court. See Gall v. United States , 552 U.S. 38, 51 (2007) (ordinarily abuse of discretion); United States v. Broussard , 669 F.3d 537, 546 (5th Cir.
2012 ) (without objection, plain error)

. As Mancha concedes , plain

- error review applies in this instance

. (Mancha highlights a circuit split regarding whether an objection to the reasonableness of a sentence is required to preserve the issue. He raises this issue to p reserve it for possible future review. ) Under the plain

- error standard of review , Mancha must show a forfeited plain (clear or obviou s) error that affected his substantial rights. Puckett v. United States , 556 U.S. 129, 135 (2009). If he does so, we h ave the discretion to correct the reversible plain error, but should do so only if it “ seriously affect [ s ] the fairness, integrity or public reputation of judicial proceedings ”

. Id. For the reasons that follow, Mancha fails to show reversible plain error

. Mancha contends his sentence is substantively unreasonable because it is greater than necessary to achieve the goals of 18 U.S.C. § 3553(a). He maintains: his prior conviction for attempted abuse of a child was remote in time ; his other prior convictions were misdemeanors; his sentence overstates the seriousness of illegal reentry ; and his sentence fails to account for his personal circumstances. The court listened to urged mitigating factors regarding Mancha’s

mo tive for re entry and concluded the advisory G uidelines sentencing range was inadequate , bas ed on his criminal history. “A defendant’s criminal history is one of the factors that a court may consider in imposing a non

- Guideline sentence.” United States v. Smith , 440 F.3d 704, 709 (5th Cir. 2006)

. Moreover, because the court was aware of , and co nsidered , the urged mitigating factor s when it impos ed the sentence, Mancha’s contention that the Case: 16-51051 Document: 00513970772 Page: 2 Date Filed: 04/27/2017No. 16

- 51051

3 sentence failed to account for his personal circumstances is without merit. (Along that line, t he court granted Mancha’s objection to the 12

- level enhancement recommended by the present ence investigation report for his prior attempted child

- abuse conviction ; Mancha contended the conviction was not a crime of violence. ) As for Mancha’s contention that his sentence overstates the seriousness of his illegal

- reentry of fense, noting the act was non

- violent, our court has rejected that contention repeatedly

. E.g. , United States v. Aguirre

- Villa , 460 F.3d 681, 683 (5th Cir. 2006) ; U nited States v. Juarez

- Duarte , 51 3 F.3d 204, 212 (5th Cir. 2008). Additionally, as to the upward variance to 36 months from the advisory sentencing range of 8 to 1 4 months, our court has affirmed much greater variances and departures in other cases. See, e.g. , United States v. McElwee , 646 F.3d 328, 342

– 43 (5th Cir. 2011) ; United States v. Saldana , 427 F. 3d 298, 315

– 16 (5th Cir. 2005)

. AFFIRMED. Case: 16-51051 Document: 00513970772 Page: 3 Date Filed: 04/27/2017