Case: 16-10378      Document: 00513798520         Page: 1    Date Filed: 12/15/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals
                                                                                Fif h Circuit
                                    No. 16-10378                              FILED
                                  Summary Calendar                    December 15, 2016
                                                                         Lyle W. Cayce
                                                                              Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JAVIER GARCIA-AGUIRRE,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 5:15-CR-81-1


Before STEWART, Chief Judge, and CLEMENT and SOUTHWICK, Circuit
Judges.
PER CURIAM: *
       Javier Garcia-Aguirre appeals the 36-month, above-guidelines sentence
imposed following his guilty plea conviction for illegal reentry, in violation of 8
U.S.C. § 1326.        He argues that his sentence is both procedurally and
substantively unreasonable.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 16-10378     Document: 00513798520     Page: 2   Date Filed: 12/15/2016


                                  No. 16-10378

      Specifically, and for the first time, Garcia-Aguirre contends that the
district court committed procedural error by failing to explain adequately its
sentence. This court’s review of the newly raised argument is for plain error
only. See United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir.
2009). To show plain error, Garcia-Aguirre must show a forfeited error that is
clear or obvious and that affects his substantial rights. See Puckett v. United
States, 556 U.S. 129, 135 (2009). If he 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. See id.
      In imposing sentence, the district court specifically stated that it had
considered the 18 U.S.C. § 3553(a) factors and that an upward variance was
warranted based on the need for adequate punishment and deterrence and
considering Garcia’s personal history and characteristics, including his
criminal history, the majority of which was unscored and which involved
repetitive offenses. This explanation was sufficient, and, thus, there is no clear
or obvious error. See Gall v. United States, 552 U.S. 38, 50 (2007); United
States v. Fraga, 704 F.3d 432, 439 (5th Cir. 2013). Moreover, even assuming
arguendo that the district court committed a clear or obvious error in failing to
adequately explain the chosen sentence, Garcia-Aguirre has not shown that
his substantial rights were affected as nothing in the record suggests that a
more thorough explanation would have resulted in a shorter sentence. See
Puckett, 556 U.S. at 135; see also United States v. Rivera, 784 F.3d 1012, 1018
(5th Cir. 2015).
      Next, Garcia-Aguirre contends that his sentence is substantively
unreasonable, asserting that the district court did not justify its “extreme”
upward variance, which was 225% higher than the highest available guidelines
sentence, and particularly denying that his criminal history warranted such



                                        2
    Case: 16-10378     Document: 00513798520     Page: 3   Date Filed: 12/15/2016


                                  No. 16-10378

an increase. The record supports that the district court had an adequate
basis for the sentence imposed and was guided by the § 3553(a) factors in
deciding that an upward variance was warranted, particularly finding that
a non-guidelines sentence addressed the sentencing objectives of punishment
and deterrence and that Garcia-Aguirre’s criminal history, which included five
convictions that did not receive criminal history points, as well as three DWI
convictions, justified the sentence. The district court’s reasons for imposing an
upward variance were fact-specific and consistent with the § 3553(a) factors,
and its variance was not an abuse of discretion. See United States v. Smith,
440 F.3d 704, 707 (5th Cir. 2006); see also United States v. Brantley, 537 F.3d
347, 349 (5th Cir. 2008).
      Garcia-Aguirre does not argue, and nothing in the record suggests, that
the district court did not account for a factor that should have received
significant weight, gave significant weight to an improper or irrelevant factor,
or made a clear error of judgment in balancing the sentencing factors. See
Smith, 440 F.3d at 708. To the extent that he seeks to have this court reweigh
those factors, this court will not do so. See Gall, 552 U.S. at 51.
      Finally, Garcia-Aguirre argues that the district court erred in imposing
a three-year term of supervised release, in contravention of U.S.S.G. § 5D1.1(c).
Because he did not object to the court’s imposition of a term of supervised
release, review is limited to plain error. See United States v. Dominguez-
Alvarado, 695 F.3d 324, 328 (5th Cir. 2012).
      Under § 5D1.1, a “court ordinarily should not impose a term of
supervised release in a case in which supervised release is not required by
statute and the defendant is a deportable alien who likely will be deported after
imprisonment.” § 5D1.1(c). Here, although the district court did not refer to
§ 5D1.1(c) at sentencing, it implicitly considered the Guideline when it



                                        3
    Case: 16-10378   Document: 00513798520     Page: 4   Date Filed: 12/15/2016


                                No. 16-10378

considered the presentence report (PSR), which advised the court of § 5D1.1(c)
and specified that Garcia-Aguirre is a deportable alien. See United States v.
Cancino-Trinidad, 710 F.3d 601, 606 (5th Cir. 2013). The PSR additionally
advised that he had been deported twice previously and that he had two
children living in the United States. The court determined that supervised
release was warranted as an added measure of deterrence, and Garcia-Aguirre
has not shown this conclusion to be clear or obvious error. See Dominguez-
Alvarado, 695 F.3d at 328.
      AFFIRMED.




                                      4