United States v. Garfias ( 2021 )

Case: 20-11198 Document: 00515896354 Page: 1 Date Filed: 06/11/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 11, 2021
No. 20-11198 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Mario Flores Garfias, Jr.,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:07-CR-321-1
Before King, Smith, and Wilson, Circuit Judges.
Per Curiam:*
Mario Flores Garfias, Jr., appeals the sentence imposed upon
revocation of his supervised release. The district court varied upward from
the advisory range by sentencing Flores Garfias to twenty-four months in
*
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opinion should not be published and is not precedent except under the limited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.
Case: 20-11198 Document: 00515896354 Page: 2 Date Filed: 06/11/2021
No. 20-11198
prison, and he objects that this sentence is unreasonable because it fails to
reflect due consideration of mitigating factors.
Because Flores Garfias properly preserved his objection to the upward
variance, we review his sentence under the “plainly unreasonable” standard.
See United States v. Warren, 720 F.3d 321, 326 (5th Cir. 2013). Under this
standard, we ask whether Flores Garfias has shown that the district court
abused its discretion. Id. at 332. He has not made such a showing.
The record indicates that the district court listened to counsel’s
explanations for Flores Garfias’s conduct but found them unpersuasive, an
assessment we will not second-guess. See United States v. Hernandez, 876
F.3d 161, 167 (5th Cir. 2017) (“[Defendant’s] claim amounts to a request that
we reweigh the sentencing factors and substitute our judgment for that of the
district court, which we will not do.”). Nor do we accept that the court’s
decision to vary upward betokens unreasonableness, particularly in view of
Flores Garfias’s history of violating release conditions. See Warren, 720 F.3d
at 332 (observing that we have “routinely affirmed revocation sentences
exceeding the advisory range” (citation and internal quotation marks
omitted)). Accordingly, Flores Garfias fails to show an abuse of the district
court’s discretion.
The judgment is AFFIRMED.
2