### 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. 4:1 6

- CR

- 189

- 1

Before REAVLEY, PRADO, and GRAVES, Circuit Judges. PER CURIAM: * Ernesto Bumagat Pecson, Jr., appeals the 120

- month, above

- g uidelines
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 sent ence, arguing that an upward departure or variance was not justified under U.S.S.G. § 4A1.3 and that his sentence fail s to take into account his mitigating arguments regarding his traumatic childhood, his

* Pursuant to 5 TH C IR

. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. 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: 01/17/2018No. 17

- 10119

2 military service, and his low likelihood for recidi vism ; represents a clear error of judgment in balancing the sentencing factor s ; 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 deferentia l a buse

- of

- discretion standard, see Gall v. United States , 552 U.S. 38, 51 (2007), we find no error. T he district court did not impose an upward departure under § 4A1.3(a) , but instead indicated that the sentence impo sed was outside of the g uidelines 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 cr iminal 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 argument s in mitigation but concluded that Pecson did not “know how t o 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. S ee United States v. Smith , 440 F.3d 704, 708 (5th Cir. 2006). We therefore d efer to the district court’s determina tion 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 justif y 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: 01/17/2018No. 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