IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-50216

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

JOSE GUADALUPE VARGAS-VICTORIA, also known as Mario GomezRodriguez,

Defendant - Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 2:11-CR-1024-1

Before DAVIS, BARKSDALE, and ELROD, Circuit Judges. 

PER CURIAM:*

Jose Guadalupe Vargas-Victoria appeals the 108-month sentence imposed

after his guilty-plea conviction for illegal reentry following deportation, in

violation of 8 U.S.C. § 1326. (The advisory Guidelines sentencing range was 46

to 57 months.) He contends the above-Guidelines sentence is substantively

unreasonable as greater than necessary to satisfy the sentencing goals of 18

U.S.C. § 3553(a). Although Vargas concedes the district court considered the

United States Court of Appeals

Fifth Circuit

F I L E D

January 2, 2013

Lyle W. Cayce

Clerk

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.

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No. 12-50216

proper factors, he contends a sentence greater than 63 months, but well below

108 months, would have been sufficient. He contends also that immigration

offenses generally result in high advisory Guidelines sentencing ranges for

relatively minor conduct, and the 46 to 57-month advisory Guidelines sentencing

range in this instance was a high starting point for his offense. Finally, he

asserts the 108-month sentence failed to account for his personal circumstances: 

he lived in the United States for most of his adult life; he was addicted to drugs

and alcohol most of his life; and he was completely deaf as a result of a surgery

to remove brain tumors. 

Although post-Booker, the Sentencing 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 Guideline-sentencing range for use in deciding on the

sentence to impose. Gall v. United States, 552 U.S. 38, 48-51 (2007). In that

respect, 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); United States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005).

Vargas does not claim procedural error. 

In reviewing an above-Guidelines sentence for substantive reasonableness,

our court considers “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). Review also

includes whether the § 3553(a) factors support the sentence, giving deference to

the district court’s determining the factors justifed the variance. Id.

Before imposing sentence, the district court considered: the advisory

Guidelines sentencing range; the applicable policy statements; the § 3553(a)

factors; the facts in the presentence investigation report; and the parties’

sentencing-contentions. It concluded the Guidelines range did not adequately

account for the § 3553(a) factors, including: Vargas’ history and characteristics;

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the need to promote respect for the laws of the United States; the need to provide

a just punishment; and the need to deter future crimes and protect the public. 

Notably, Vargas had a lengthy criminal history,including uncounted convictions

for burglary, controlled substance offenses, and illegal reentry. Although his

108-month sentence is 51 months greater than the top of the 46 to 57-month

advisory Guidelines sentencing range, our court has upheld variances

considerably greater than the increase to his sentence. E.g., id. at 348-50

(upholding sentence 253 percent higher than top of advisory Guidelines

sentencing range).

Vargas’ contentions do not show a clear error of judgment by the district

court in balancing the § 3553(a) factors; they merely constitute disagreement

with the court’s weighing of those factors. Given the significant deference due

to a district court’s consideration of the § 3553(a) factors and the court’s reasons

for its sentencing decision, Vargas has not demonstrated the sentence is

substantively unreasonable. 

AFFIRMED.

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