### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 12-50216 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff - Appellee

v. JOSE GUADALUPE VARGAS-VICTORIA, also known a s 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-Vic t o ri a a p peals the 108-month sentence imposed after his guilty-plea conviction for i l legal reentry following deportation, in violation of 8 U.S.C. § 1326. (The advisory Guidelines sentencing range was 46 to 57 months.) He co n t e nds the above-Guidelines sentence is substantively unreasonable as greater than necessary to satisfy the sentencing goals of 18 U.S.C. § 3553(a). Although V a r g a s concedes the district court considered the U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Janu ary2, 201 3 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

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proper factors, he contends a sentence greater than 63 months, but well below 108 months, would have b een sufficient. He contends also that immigration offenses generally result in high advisory Guide lines sentencing ranges for rel ativ e ly m i n o r c o n duct, and the 46 to 57-month advisory Guidelines sentencing range in this instance was a high starting point for his offens e . 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 preserv ed objection to an ultimate sentence is reviewed for reasonableness under an abuse-of-discretion standard, the d i strict court must still properly calculate the Guideline-sentencing range for use in deciding on the sentence to impose. Gall v. United States , 5 5 2 U

. S

. 3 8 , 4 8-51 (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 3 5 5 , 3 5 9 (5th Cir. 2005). Vargas does not claim procedural error. I n r evi e wi n g a n ab ov e - G ui d e li n e s s e nt e nc e for substa ntiv e r e a s o n ab l e n e s s , 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. Befor e i m p o sing sentence, the district court considered: the advisory Guide l i n e s sentencing range; the applicable policy statements; the § 3553(a) factors; the facts in the presentence investig a tion report; and the parties’ sente n c i n g-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, i nc lu di n g u nc o u nted convictions for b u r gl a ry, controlled substance offenses, and illegal reentry. Although his 108-month s entence is 51 months greater than the top of the 46 to 57-month advisory Guidelines s e n tencing range, our court has upheld variances considerably greater than the increase to h i s sentence. E.g. , id

. at 348-50 (upholding sentence 253 percent higher than top of advisory Guideli nes 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 it s s entencing decision, Vargas has not demonstrated the sentence is substantively unreasonable. AFFIRMED.

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