USA v. Francisco Gallegos-Medrano


UNPUBLISHED OPINION FILED. [17-10162 Affirmed] Judge: EHJ, Judge: JES, Judge: RHB. Mandate issue date is 11/15/2017 for Appellant Francisco Gallegos-Medrano [17-10162]

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Case: 17-10162 Document: 00514208195 Page: 1 Date Filed: 10/24/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 17-10162 Summary Calendar United States Court of Appeals Fifth Circuit FILED October 24, 2017 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff - Appellee v. FRANCISCO GALLEGOS-MEDRANO, Defendant - Appellant Appeal from the United States District Court for the Northern District of Texas USDC No. 5:16-CR-37-1 Before JONES, SMITH, and BARKSDALE, Circuit Judges. PER CURIAM: * Francisco Gallegos-Medrano contests his 60-month, above-Guidelines sentence, stemming from his guilty-plea conviction for illegal reentry after deportation, in violation of 8 U.S.C. § 1326, and 6 U.S.C. §§ 202(3), 202(4), & 557. He challenges only the substantive reasonableness of his 60-month 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 Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. * Case: 17-10162 Document: 00514208195 Page: 2 Date Filed: 10/24/2017 No. 17-10162 Although post-Booker, the Sentencing Guidelines are advisory only, the district court must avoid significant procedural error, such as improperly calculating the Guidelines sentencing range. Gall v. United States, 552 U.S. 38, 48–51 (2007). If no such procedural error exists, a properly preserved objection to an ultimate sentence is reviewed for substantive reasonableness under an abuse-of-discretion standard. Id. at 51; United States v. DelgadoMartinez, 564 F.3d 750, 751–53 (5th Cir. 2009). In that respect, for issues preserved in district court, its application of the Guidelines is reviewed de novo; its factual findings, only for clear error. E.g., United States v. CisnerosGutierrez, 517 F.3d 751, 764 (5th Cir. 2008). Gallegos asserts: his sentence is substantively unreasonable because the court imposed an upward variance 33 months greater than his advisory 21-to27-months Guidelines sentencing range; his sentence was greater than necessary to achieve the goals set forth in 18 U.S.C. § 3553(a); and the upward variance reflected a clear error of judgment in balancing the sentencing factors. For the following reasons, after reviewing the substantive reasonableness of Gallegos’ sentence under the requisite deferential abuse-of-discretion standard, there was no error. E.g., Gall, 552 U.S. at 51. The court referenced specific facts, and provided specific reasons, consistent with the § 3553(a) sentencing factors, why a sentence outside the Guidelines sentencing range was warranted. The court focused on Gallegos’ substantial criminal history. For example, notwithstanding Gallegos’ assertions his criminal history was “based on two incidents, that were mostly misdemeanors”, the court noted Gallegos had three prior federal convictions related to illegal reentry, and five DWI convictions. The court also stated the upward variance was warranted, inter alia, to promote respect for the law, provide just punishment for the offense, and afford adequate deterrence. 2 Case: 17-10162 Document: 00514208195 Page: 3 Date Filed: 10/24/2017 No. 17-10162 Nothing suggests the court did not account for a factor that should have received significant weight or made a clear error of judgment in balancing the sentencing factors. United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006). And, we defer to the court’s determination the § 3553(a) factors, on the whole, justify the upward variance, United States v. Broussard, 669 F.3d 537, 551 (5th Cir. 2012), which is similar to other variances previously affirmed by this court, e.g., United States v. Brantley, 537 F.3d 347, 348–50 (5th Cir. 2008) (affirming sentence of 120 months’ imprisonment with a 41-to-51-months Guidelines sentencing range). Given that Gallegos was removed on four prior occasions and had already been sentenced to a total of 40 months’ imprisonment for offenses related to illegal reentry, it was not unreasonable for the court to conclude a sentence within the advisory sentencing range of 21–27 months’ imprisonment would not serve as adequate deterrence or promote respect for the law. AFFIRMED. 3

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