IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-40023

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ROBERTO FLORES-BREWSTER,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:13-CR-935-1

Before BENAVIDES, SOUTHWICK, and COSTA, Circuit Judges.

PER CURIAM:*

Roberto Flores-Brewster appeals the 60-month sentence imposed by the 

district court following his guilty plea conviction for conspiracy to transport 

illegal aliens within the United States. He argues that the district court 

arbitrarily selected a 60-month sentence without considering incremental 

increases for departures under the Guidelines. He asserts that the district 

court abused its discretion in merely giving generic reasons for the sentence 

* 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

November 20, 2014

Lyle W. Cayce

Clerk

 

 Case: 14-40023 Document: 00512843999 Page: 1 Date Filed: 11/20/2014
No. 14-40023

and then sentencing him to five times the sentence imposed on his 

codefendants.

Because Flores-Brewster failed to object to the sentence on the above 

ground in the district court, review is limited to plain error. See United States 

v. Peltier, 505 F.3d 389, 391 (5th Cir. 2007). To show plain error, the appellant 

must show a forfeited error that is clear or obvious and that affects his

substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If the 

appellant makes such a showing, this court has the discretion to correct the 

error but only if it seriously affects the fairness, integrity, or public reputation 

of judicial proceedings. Id.

The district court imposed an upward variance, and not an upward 

departure. A departure and a variance are separate and distinct sentencing 

mechanisms. United States v. Jacobs, 635 F.3d 778, 782 (5th Cir. 2011). Thus, 

any assertion that the district court erred in imposing an upward departure 

under the Guidelines is meritless. See, e.g., United States v. Mejia-Huerta, 480 

F.3d 713, 723 (5th Cir. 2007).

After considering the arguments presented at sentencing and the 

undisputed information contained in the Presentence Report, the district court 

was free to conclude that the 18 U.S.C. § 3553(a) factors warranted an upward 

variance. The district court specifically referred to Flores-Brewster’s criminal 

history, including two fairly recent convictions for similar crimes involving 

transporting illegal aliens, as well as many other types of criminal activity. 

The district court stated that it was not convinced that Flores-Brewster would 

not engage in the same conduct again. The district court considered the 

§ 3553(a) factors and determined that a sentence above the guidelines range 

was necessary primarily to deter further criminal conduct, to provide for the 

safety of the community, and also to promote respect for the law. Thus, the 

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No. 14-40023

record reflects that the district court’s decision to vary from the advisory 

guidelines range was based on permissible factors that advanced the objectives 

set forth in § 3553(a). See United States v. Lopez-Velasquez, 526 F.3d 804, 807 

(5th Cir. 2008); United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006). 

Because his codefendants had very little or no prior criminal history and had 

different roles in the offense, they were not similarly situated to FloresBrewster. Therefore, there were no unwarranted sentencing disparities 

between sentences imposed on Flores-Brewster and his codefendants in the 

instant case. See United States v. Heard, 709 F.3d 413, 435 (5th Cir.), cert. 

denied, 134 S. Ct. 470 (2013); United States v. Candia, 454 F.3d 468, 476 (5th 

Cir. 2006). Flores-Brewster has not shown any procedural error, plain or 

otherwise, in the nonguidelines sentence imposed. See Peltier, 505 F.3d at 392.

AFFIRMED.

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