IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-11209

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JOSE ELEUTERIO NAVA,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:18-CR-62-1

Before BENAVIDES, GRAVES, and HO, Circuit Judges.

PER CURIAM:*

Jose Eleuterio Nava appeals the 36-month sentence imposed following 

his guilty-plea conviction for unlawful escape from custody in violation of 18 

U.S.C. § 751(a). Nava argues that this above-guidelines sentence is 

substantively unreasonable and, further, that our caselaw declining to reweigh the statutory sentencing factors conflicts with both the demands of due 

process and Supreme Court precedent. Because the latter argument is raised 

 

* 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

July 26, 2019

Lyle W. Cayce

Clerk

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for the first time in Nava’s reply brief, we will not consider it. See Yohey v. 

Collins, 985 F.2d 222, 225 (5th Cir. 1993).

In reviewing a sentence for substantive reasonableness, we apply an 

abuse of discretion standard “regardless of whether the sentence imposed is 

inside or outside the Guidelines range.” United States v. Fraga, 704 F.3d 432, 

437 (5th Cir. 2013) (internal quotation marks, brackets, and citation omitted). 

A non-guidelines sentence is substantively unreasonable if it fails to reflect the 

18 U.S.C. § 3553(a) sentencing factors in that 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). 

There is no merit to Nava’s assertion that the district court failed to 

account for a significant sentencing factor because it did not consider certain 

mitigating facts discussed by the defense at sentencing, namely his 

sympathetic reasons for leaving custody, his good behavior while out of 

custody, and his lack of violent conduct during the past 12 years. While the 

district court did not specifically reference these arguments in its reasons, 

there is no indication in the record that the district court did not consider them. 

To the contrary, the district court expressly stated at sentencing that it had 

considered Nava’s history and characteristics, the needs for adequate criminal 

deterrence and the protection of the public from any further crimes by the 

defendant, and all of the § 3553(a) factors. See § 3553(a)(1), (2)(B)-(C). 

Neither is there merit to Nava’s apparent contention that the district 

court improperly gave significant weight to an improper factor by considering 

his offense of unauthorized absence from community corrections, which he 

committed at age 17. Even if it is assumed arguendo that this was a juvenile 

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adjudication and that the district court relied on it in sentencing Nava, we have 

rejected the argument that a non-guidelines sentence based in part on 

unscored juvenile adjudications took into account an improper sentencing 

factor. See Smith, 440 F.3d at 709.

Finally, Nava has failed to show that his sentence represents a clear 

error of judgment in balancing the sentencing factors because the extent of the 

variance was not justified by his criminal history. As we have explained, “a 

defendant’s criminal history is one of the factors that a court may consider in 

imposing a non-Guideline sentence.” Fraga, 704 F.3d at 440 (internal 

quotation marks, brackets, and citation omitted). Where, as here, the

defendant has engaged in violent criminal conduct that has gone unscored, a 

guidelines sentence may underrepresent the seriousness of his criminal history 

and the likelihood that he will commit other crimes. See id. at 441. Nava has 

failed to overcome the due deference owed to the district court’s decision that 

the extent of the variance is justified by the statutory sentencing factors in this 

case. See id. at 437, 440-41 (upholding upward variance from guidelines 

maximum of 18 months in prison to 27 months).

In sum, Nava has failed to show that the district court abused its 

discretion by imposing an above-guidelines sentence of 36 months in prison. 

See id. at 440. Rather, it appears that Nava is merely expressing his 

disagreement with how the district court weighed the § 3553(a) factors, which 

“is not a sufficient ground for reversal.” United States v. Malone, 828 F.3d 331, 

342 (5th Cir. 2016). 

The judgment of the district court is AFFIRMED. 

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