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 months’

imprisonment. 

Miranda challenges the substantive reasonableness of his sentence, 

claiming it is greater than necessary to accomplish the 18 U.S.C. § 3553(a) 

 

* 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

June 17, 2015

Lyle W. Cayce

Clerk

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No. 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 reviewed 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) represents 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, the 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, accordingly, 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-month and 30-month terms of 

imprisonment for illegal reentry, the court made an individualized assessment 

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No. 14-51072

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that a sentence within Miranda’s 10 to 16 months would not adequately deter 

him from engaging in future criminal conduct. Additionally, his 48-month 

term of imprisonment is significantly below the statutory maximum and 

within the range 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 under § 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.

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