United States Court of Appeals

for the Fifth Circuit

No. 20-30047

Summary Calendar

United States of America, 

Plaintiff—Appellee,

versus

Richard W. Borek, Jr., 

Defendant—Appellant.

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 6:18-CR-205-1

Before Owen, Chief Judge, and Haynes and Costa, Circuit Judges.

Per Curiam:*

Richard W. Borek, Jr., appeals his sentence of 50 months of 

imprisonment for attempted bank fraud. The district court sentenced him to

41 months of imprisonment, at the top of the guidelines range; given that he 

committed this offense while on pretrial release, he received an additional 

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

December 18, 2020

Lyle W. Cayce

Clerk

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nine months of imprisonment pursuant to 18 U.S.C. § 3147; his combined 

50-months’ sentence was ordered to run consecutive to the federal sentence 

he is serving; and he was ordered to pay restitution related to counts that 

were dismissed and to which he did not plead guilty. Because Borek agreed 

in the plea agreement to pay restitution to Iberia Bank and Home Bank for 

the loss alleged in the dismissed counts, the district court was authorized to 

order restitution in accordance with the plea agreement. See 18 U.S.C. 

§ 3663A(a)(3).

Borek preserved a challenge to the substantive reasonableness of his 

sentence by raising his arguments in the district court and advocating for a 

more lenient sentence. See Holguin-Hernandez v. United States, 140 S. Ct. 

762, 766-67 (2020). Using a bifurcated review process, this court first 

examines whether the district court committed any significant procedural 

error. Gall v. United States, 552 U.S. 38, 51 (2007). If the district court’s 

decision is procedurally sound, this court then considers the substantive 

reasonableness of the sentence under an abuse of discretion standard, 

irrespective of whether the sentence falls within the guidelines range. Id. 

Here, Borek’s 50-months’ sentence, including the nine-months’

sentence enhancement pursuant to § 3147, is not within his guideline 

imprisonment range of 33 to 41 months. It is not apparent from the record 

whether the district court imposed an upward variance or an upward 

departure. In any event, this court has held that the specific characterization 

as a departure or variance is irrelevant if an imposed sentence is “reasonable 

under the totality of the relevant statutory factors.” United States v. Brantley, 

537 F.3d 347, 349 (5th Cir. 2008) (internal quotation marks omitted).

Substantive reasonableness review is based on the 18 U.S.C. § 3553(a)

sentencing factors. Gall, 552 U.S. at 51. When an above-guidelines sentence 

is imposed, this court “may consider the extent of the deviation but must give 

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due deference to the district court’s decision that the [§] 3553(a) factors, as 

a whole, justify the extent of the variance.” United States v. Churchwell, 807 

F.3d 107, 123 (5th Cir. 2015). “A sentence is substantively unreasonable if 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. Warren, 720 F.3d 321, 332 (5th Cir. 2013) (internal quotation 

marks omitted).

Here, the district court specifically stated that the sentence was 

justified in light of the § 3553(a) factors and referenced both Borek’s 

substantial criminal history and the fact that he committed the instant offense 

during pretrial release for wire fraud. Borek’s 30 criminal history points were 

the most criminal history points in the court’s memory. The written 

statement of reasons reflect that the sentence was based on the nature and 

circumstances of the offense and Borek’s history and characteristics, as well 

as the need to reflect the seriousness of the offense, promote respect for the 

law, and provide just punishment. See § 3553(a)(1)-(2)(A). Given the 

significant deference that is due a district court’s consideration of the 

§ 3553(a) factors and the district court’s explanation of its sentencing 

decision, Borek has not demonstrated that his sentence was substantively 

unreasonable. See Gall, 552 U.S. at 51-53. Moreover, we have previously 

rejected Borek’s argument that the application of U.S.S.G. § 3C1.3 and 18 

U.S.C. § 3147 violates Apprendi v. New Jersey, 530 U.S. 466 (2000). See 

United States v. Simpson, 682 F. App’x 299, 303 (5th Cir. 2017).

The district court’s judgment is AFFIRMED.

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