IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-11444

Summary Calendar 

UNITED STATES OF AMERICA, 

Plaintiff - Appellee 

v. 

JESUS RODRIGUEZ-SUAREZ, 

Defendant - Appellant 

Appeal from the United States District Court 

for the Northern District of Texas 

USDC No. 3:16-CR-39-1 

Before BARKSDALE, GRAVES, and COSTA, Circuit Judges. 

PER CURIAM:*

Jesus Rodriguez-Suarez appeals his sentence for illegal reentry after 

removal, in violation of 8 U.S.C. § 1326. He contends his sentence of 36 

months, which was an upward variance from the range calculated under the 

advisory Sentencing Guidelines, is substantively unreasonable. 

Rodriguez was arrested in Navarro County, Texas, for an unrelated state 

offense, and was shortly thereafter detained in administrative custody by 

 

* 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

July 10, 2017

Lyle W. Cayce

Clerk

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No. 16-11444

2 

United States Immigrations and Customs Enforcement. He had been removed 

after unlawfully entering the United States on seven prior occasions, and he 

had also been convicted of, inter alia, a felony for illegally carrying a weapon 

at a school. He pleaded guilty to the charge at issue here. In addition, he had 

previously received a 30-month sentence for illegal reentry. 

Although post-Booker, the Sentencing Guidelines are advisory only, the 

district court must avoid significant procedural error, such as improperly 

calculating the Guidelines sentencing range. Gall v. United States, 552 U.S. 

38, 48–51 (2007). If no such procedural error exists, a properly preserved 

objection to an ultimate sentence is reviewed for substantive reasonableness 

under an abuse-of-discretion standard. Id. at 51; United States v. DelgadoMartinez, 564 F.3d 750, 751–53 (5th Cir. 2009). In that respect, for issues 

preserved in district court, its application of the Guidelines is reviewed de novo; 

its factual findings, only for clear error. E.g., United States v. CisnerosGutierrez, 517 F.3d 751, 764 (5th Cir. 2008). Accordingly, assuming, arguendo, 

Rodriguez preserved his substantive-unreasonableness objection, his sentence 

is reviewed for abuse of discretion. Gall, 552 U.S. at 51. 

In reviewing an above-Guidelines sentence for substantive 

reasonableness, we consider “the totality of the circumstances, including the 

extent of any variance from the Guidelines range”. United States v. Brantley, 

537 F.3d 347, 349 (5th Cir. 2008) (internal quotation marks and citation 

omitted). Also considered is whether the 18 U.S.C. § 3553(a) sentencing factors 

support the sentence and give deference to the district court’s conclusion that 

those factors justify an upward variance. Brantley, 537 F.3d at 349. “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 

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sentencing factors.” United States v. Peltier, 505 F.3d 389, 392 (5th Cir. 2007) 

(internal quotation marks and citation omitted).

Rodriguez asserts the court placed too much weight on his seven prior 

removals and not enough on his community support and recent good behavior. 

The district court, however, is obviously in a superior position to find facts and 

judge their import; we will not reweigh the § 3553(a) factors. See United 

States v. Rodriguez-Bernal, 783 F.3d 1002, 1008 (5th Cir. 2015). The court did 

not abuse its discretion by considering the need for the sentence imposed to 

promote respect for the law and to provide deterrence, either generally or 

specifically as to Rodriguez. See 18 U.S.C. § 3553(a)(2)(A), (B). Considering 

the totality of the circumstances, the extent of the upward variance—from the 

advisory Guidelines range of 15 to 21 months to a sentence of 36 months—was 

not an abuse of discretion.

AFFIRMED. 

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