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

No. 14

- 51072 Summary Calendar

UNITED STATES OF AMERICA , Plaintiff

- Appellee

v.
VICENTE MIRANDA

- CUEVAS , Defendant

- Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 2:14

- CR

- 189

- 1

Before JOLLY, BARKSDALE, and OWEN, Circuit Judges. PER CURIAM: * Vicente Miranda

- Cuevas pleaded guilty to illegal reentry in 2014 after deportation , in violation of 8 U.S.C. § 1326. He was sentenced above the sentencing range under the advisory Sentencing Guidelines to 48 month s’ imprisonment. Miranda challenges the substantive reasonableness of h is sentence, claiming it is greater than necessary to accomplish the 18 U.S.C. § 3 553(a )

* Pursuant to 5 th Cir. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 th Cir. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED June 17, 2015 Lyle W. Cayce Clerk Case: 14-51072 Document: 00513082869 Page: 1 Date Filed: 06/17/2015No. 14

- 51072

2 sentencing goals . As part of his claim, Miranda asserts the district court considered his state

- criminal convictions , which were not used in computing his criminal

- history category for his sentencing range

. Although post

- Booker , the Guidelines are advisory only, and a properly preserved objection to an ultimate sentence is reviewed for reasonableness under an abuse

- of

- discretion standard, the district court must still properly calculate the advisory Guidelines

- sentencing range for use in deciding on the sentence to impose. Gall v. United States , 552 U.S. 38, 51 (2007). In that respect, for issues preserved in district court, its application of the Guidelines is r eviewed de novo ; its factual findings, only for clear error. E.g., United States

v. Cisneros

- Gutierrez , 517 F.3d 751, 764 (5th Cir. 2008). As noted, Miranda does not claim procedural error; he challenges only the substantive reasonableness of his sentence . In that regard, a sentence outside of the sentencing range is substantively 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) re presents a clear error of judgment in balancing the sentencing factors ”. United States v. Smith , 440 F.3d 704, 708 (5th Cir. 2006) (citations omitted ). For sentencing, t he court considered the information in the presentence investigation report , the advisory sentencing range, the parties ’ oral presentations, pertinent policy statements, and the § 3553(a) sentencing factors . (Factors considered by the court do not appear to have included Miranda’s outdated state

- criminal convictions that were, accordi ngly, not used in computing his criminal

- history category. But, if they were, this would not constitute error. See Smith , 440 F.3d at 709.) Relying on Miranda ’s prior 24

- mo nth and 30

- month terms of imprisonment for illegal reentry , the court made an in dividualized assessment Case: 14-51072 Document: 00513082869 Page: 2 Date Filed: 06/17/2015No. 14

- 51072

3 that a sent ence within Miranda’s 10 to 16 months would not adequately deter him from engagi ng in future criminal conduct. Additionally , his 48

- month term of imprisonment is significantly below the statutory maximum and within the r ange of variances this court has affirmed as substantively reasonable. See , e.g., United States v. Key , 599 F.3d 469, 475

- 76 (5th Cir. 2010) ( affirming a 216

- month sentence where the sentencing

- range maximum was 57 months). “[T]he sentencing court is free to conclude that the applicable Guidelines [sentencing] range gives too much or too little weight to one or more factors, and may adjust the sentence accordingly unde r § 3553(a)”

. United States v. Lopez

- Velasquez , 526 F.3d 804, 807 (5th Cir. 2008) ( citation and internal quotation marks omitted). Miranda effectively requests this court to reweigh the § 3553(a) sentencing factors, but we “must give due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance”. Gall , 552 U.S. at 51. AFFIRMED. Case: 14-51072 Document: 00513082869 Page: 3 Date Filed: 06/17/2015