### 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 senten ce as substantively unre asonable. He argues that the district “ court was wrong to treat the oldest offenses on equal footing with the newest [ offenses ] ”

* Pursuant to 5 TH C IR

. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED December 14, 2015 Lyle W. Cayce Clerk Case: 15-10460 Document: 00513305949 Page: 1 Date Filed: 12/14/2015No. 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 fa ctor, 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, inclu ding the extent of any variance from the G uidelines
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 de cision 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 extensiv e 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 , am ounting 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 St ates v. Lopez

- Velasquez , 526 F.3d Case: 15-10460 Document: 00513305949 Page: 2 Date Filed: 12/14/2015No. 15

- 10460

3 804, 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 fo und in § 3553(a). Accordingly, the 48

- month sentence, which was 32 months above the t op 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