IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-10119

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ERNESTO BUMAGAT PECSON, JR., also known as Ernesto Bagamat Pecson,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:16-CR-189-1

Before REAVLEY, PRADO, and GRAVES, Circuit Judges.

PER CURIAM:*

Ernesto Bumagat Pecson, Jr., appeals the 120-month, above-guidelines

range sentence imposed following his guilty plea conviction for bank robbery, 

in violation of 18 U.S.C. § 2113(a). He challenges only the substantive 

reasonableness of the sentence, arguing that an upward departure or variance 

was not justified under U.S.S.G. § 4A1.3 and that his sentence fails to take into 

account his mitigating arguments regarding his traumatic childhood, his 

 

* 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

January 17, 2018

Lyle W. Cayce

Clerk

 Case: 17-10119 Document: 00514310297 Page: 1 Date Filed: 01/17/2018
No. 17-10119

2

military service, and his low likelihood for recidivism; represents a clear error 

of judgment in balancing the sentencing factors; and is greater than necessary 

to achieve the sentencing goals of 18 U.S.C. § 3553(a).

After reviewing the substantive reasonableness of Pecson’s sentence 

under a deferential abuse-of-discretion standard, see Gall v. United States, 

552 U.S. 38, 51 (2007), we find no error. The district court did not impose an 

upward departure under § 4A1.3(a), but instead indicated that the sentence 

imposed was outside of the guidelines range based on the factors set forth in 

§ 3553(a). Indeed, the district court stated that the 120-month sentence was 

“absolutely necessary” to address the § 3553(a) sentencing factors, noting that 

Pecson, who was 42 at the time of sentencing, had engaged in criminal conduct 

since he was a teenager and that the presentence report contained 16 pages 

devoted to his criminal history. The district court listened to Pecson’s 

arguments in mitigation but concluded that Pecson did not “know how to abide 

by the rules of society” and that an upward variance was warranted based on 

the nature and circumstances of the offense, the history and characteristics of 

Pecson, the need to provide adequate deterrence, and to protect the public from 

further crimes. See § 3553(a)(1), (a)(2)(A), (B), (C).

Nothing suggests that the district court failed to consider a factor that 

should have received significant weight, gave significant weight to an improper 

factor, or made a clear error of judgment in balancing the sentencing factors. 

See United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006). We therefore 

defer to the district court’s determination that the § 3553(a) factors, on the 

whole, merit a variance, see United States v. Brantley, 537 F.3d 347, 349 (5th 

Cir. 2008), and justify the extent of the variance, see United States v. 

Broussard, 669 F.3d 537, 551 (5th Cir. 2012), which, at 24 months above the 

advisory sentencing range of 77 to 96 months of imprisonment, is less than 

 Case: 17-10119 Document: 00514310297 Page: 2 Date Filed: 01/17/2018
No. 17-10119

3

other variances previously affirmed by this court, see, e.g., Brantley, 537 F.3d 

at 348-50.

AFFIRMED.

 Case: 17-10119 Document: 00514310297 Page: 3 Date Filed: 01/17/2018