IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-10460

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

LEONIDEZ VERGARA-TAPIA,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 6:14-CR-45-1

Before REAVLEY, SMITH, and HAYNES, Circuit Judges.

PER CURIAM:*

Leonidez Vergara-Tapia (Tapia) pleaded guilty to illegal reentry 

following deportation. The district court sentenced Tapia above the advisory 

guidelines range to 48 months of imprisonment.

In his sole issue on appeal, Tapia challenges his above-guidelines 

sentence as substantively unreasonable. He argues that the district “court was 

wrong to treat the oldest offenses on equal footing with the newest [offenses]” 

 

* 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

December 14, 2015

Lyle W. Cayce

Clerk

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No. 15-10460

2

and that his older offenses “have far less bearing” on his history and 

characteristics.

We review sentences for reasonableness. Gall v. United States, 552 U.S. 

38, 51 (2007). An above-guidelines sentence is unreasonable if the district 

court (1) did not account for a factor that should have received significant 

weight, (2) gave significant weight to an irrelevant or improper factor, or 

(3) made a clear error of judgment in balancing the sentencing factors. United 

States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006). We must consider the 

substantive reasonableness of the sentence based on “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). “In making this determination, we 

must give due deference to the district court’s decision that the [18 U.S.C.] 

§ 3553(a) factors, on a whole, justify the extent of the variance.” United States 

v. Gerezano-Rosales, 692 F.3d 393, 401 (5th Cir. 2012) (internal quotation 

marks and citation omitted).

Tapia’s argument that the district court gave too much weight to his 

criminal history is unavailing. The record reflects that the district court gave 

Tapia’s counsel, and Tapia himself, an opportunity to speak before the sentence 

was imposed. The district court noted that Tapia had “an extensive criminal 

history,” including five DWI convictions, three prior convictions for 

immigration offenses, 11 “apprehensions by the Border Patrol,” and two 

convictions for false or fraudulent documents, amounting to “a total of ten prior 

convictions, eight of which received zero criminal history points.” Based on 

this information, the district court made an individualized assessment that a 

sentence within Tapia’s 10-to-16 month guidelines range would not adequately 

address the § 3553(a) factors. See United States v. Lopez-Velasquez, 526 F.3d 

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804, 807 (5th Cir. 2008). Tapia has not shown that the district court committed 

clear error in balancing the sentencing factors. See Smith, 440 F.3d at 708.

Although Tapia complains that his 48-month sentence is “three-times 

the high end of the guideline range,” we have affirmed similar or greater 

variances as substantively reasonable where the district court based its 

upward variance on permissible considerations. See, e.g., United States v. Key, 

599 F.3d 469, 475-76 (5th Cir. 2010); Brantley, 537 F.3d at 348-50; United 

States v. Smith, 417 F.3d 483, 492 (5th Cir. 2005). Here, the district court 

based its upward variance on factors found in § 3553(a). Accordingly, the 48-

month sentence, which was 32 months above the top of the guidelines range of 

10 to 16 months of imprisonment, is substantively reasonable. See Smith, 440 

F.3d at 708, 710.

AFFIRMED.

 Case: 15-10460 Document: 00513305949 Page: 3 Date Filed: 12/14/2015