eLaws | Code of Federal Regulations | United States Code |
 All Courts
 Federal Courts
 US Court of Appeals Cases
 Court of Appeals for the Fifth Circuit
 2023-03

United States v. Perez ( 2023 )


Menu:
 
  • Case: 22-50683        Document: 00516692022             Page: 1      Date Filed: 03/28/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-50683
Summary Calendar                                 FILED
____________                                March 28, 2023
Lyle W. Cayce
United States of America,                                                         Clerk
Plaintiff—Appellee,
versus
Jose Alfredo Perez,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:21-CR-111-1
______________________________
Before Higginbotham, Graves, and Ho, Circuit Judges.
Per Curiam: *
Jose Alfredo Perez appeals his 100-month sentence for possessing a
firearm as a convicted felon. Although the advisory guidelines range was 30
to 37 months of imprisonment, the district court applied an upward variance
to 100 months of imprisonment. Perez challenges the procedural and
substantive reasonableness of his sentence.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-50683       Document: 00516692022         Page: 2    Date Filed: 03/28/2023
No. 22-50683
First, Perez argues that the district court imposed a procedurally
unreasonable sentence by failing to adequately explain the reasons for the
upward variance. Perez failed to object to his sentence on this basis in the
district court.   Thus, we review for plain error.        See United States v.
Mondragon-Santiago,
    564 F.3d 357
    , 362-64 (5th Cir. 2009). Even if the
district court had committed a clear or obvious error in failing to adequately
explain the sentence, Perez has not shown that his substantial rights were
affected. See Puckett v. United States,
    556 U.S. 129
    , 135 (2009). To show that
the error affected his substantial rights, Perez must show that the error
“affected the outcome in the district court.” Mondragon-Santiago,
    564 F.3d at 364
    . To do so, he “must demonstrate a probability sufficient to undermine
confidence in the outcome.”
    Id.
     (internal quotation marks and citation
omitted). Since there is no evidence that the district court would have
imposed a shorter sentence if it had further articulated its reasons for the
variance, Perez has not shown that his substantial rights were affected. See
    id. at 364-65
    .
Second, Perez contends that his sentence is substantively
unreasonable because it creates an unwarranted disparity between him and
similarly situated defendants.     Because Perez properly preserved his
challenge to the reasonableness of his sentence, we review for an abuse of
discretion. See United States v. Burney,
    992 F.3d 398
    , 399-400 (5th Cir. 2021).
In imposing a non-guidelines sentence, a district court may consider factors
already taken into account by the Sentencing Guidelines, including a
defendant’s criminal history. United States v. Brantley,
    537 F.3d 347
    , 350 (5th
Cir. 2008). Our review of the record does not reveal that the district court
gave significant weight to an irrelevant or improper factor or otherwise
abused its discretion by failing to account for a factor that should have
received significant weight or committing a clear error of judgment in
balancing the § 3553(a) factors. See Burney, 992 F.3d at 400. Moreover, as
2
Case: 22-50683        Document: 00516692022        Page: 3   Date Filed: 03/28/2023
No. 22-50683
to the extent of the variance, this court has upheld proportionately similar
upward variances. See, e.g., United States v. Jones,
    444 F.3d 430
    , 433, 441-43
(5th Cir. 2006).
Accordingly, the judgment of the district court is AFFIRMED.
3