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’

imprisonment 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 Sentencing Guidelines 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

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No. 16-51051

2

Although the reasonableness of a sentence 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 preserve it for possible future review.)

Under the plain-error standard of review, Mancha must show a forfeited 

plain (clear or obvious) error that affected his substantial rights. Puckett v. 

United States, 556 U.S. 129, 135 (2009). If he does so, we have 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 

motive for reentry and concluded the advisory Guidelines sentencing range 

was inadequate, based 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 considered, the urged 

mitigating factors when it imposed the sentence, Mancha’s contention that the 

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sentence failed to account for his personal circumstances is without merit. 

(Along that line, the court granted Mancha’s objection to the 12-level 

enhancement recommended by the presentence 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 offense, 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); United States v. Juarez-Duarte, 513 F.3d 204, 

212 (5th Cir. 2008). Additionally, as to the upward variance to 36 months from 

the advisory sentencing range of 8 to 14 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.

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