United States v. Aviles-Aviles ( 2023 )

Case: 22-60331 Document: 00516625844 Page: 1 Date Filed: 01/27/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
January 27, 2023
No. 22-60331 Lyle W. Cayce
Summary Calendar Clerk
____________
United States of America,
Plaintiff—Appellee,
versus
Marco Antonio Aviles-Aviles,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:21-CR-81-1
______________________________
Before Wiener, Elrod, and Engelhardt, Circuit Judges.
Per Curiam:*
Defendant-Appellant Marco Antonio Aviles-Aviles pleaded guilty to
the crime of illegal reentry in violation of 8 U.S.C. § 1326(a). The district
court sentenced him to the statutory maximum of two years in prison—an
upward variance from the advisory guidelines range of 0-6 months in prison.
Aviles-Aviles asserts on appeal that this sentence is substantively
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-60331 Document: 00516625844 Page: 2 Date Filed: 01/27/2023
No. 22-60331
unreasonable because the district court erred in balancing the 18 U.S.C. §
3553(a) sentencing factors.
An above-guidelines sentence may be 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 and
citation omitted). We consider—but do not reweigh—the sentencing factors
set forth in § 3553(a) when reviewing the reasonableness of a sentence. Gall
v. United States, 552 U.S. 38, 46-47 (2007). We give “due deference to the
district court’s decision that the § 3553(a) factors, on a whole, justify the
extent of the variance.” Id. at 51.
Aviles-Aviles fails to establish that the district court abused its
discretion in imposing an above-guidelines sentence. See Gall, 552 U.S. at 50-
53. The record shows that the district court assessed the facts and arguments
of the parties to determine that a sentence within the advisory guidelines
range would not achieve the sentencing goals of § 3553(a). The district court
provided ample justification for imposing a variance: The court adopted the
presentence report, weighed the guidelines range and sentencing factors, and
specifically noted the seriousness of the offense and Aviles-Aviles’s history
and characteristics. See United States v. Diehl, 775 F.3d 714, 724 (5th Cir.
2015) (“Even a significant variance from the Guidelines does not constitute
an abuse of discretion if it is commensurate with the individualized, case
specific reasons provided by the district court.”).
The district court’s judgment is AFFIRMED.
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