United States v. Jose Nunez-Palacios , 572 F. App'x 261 ( 2014 )

Case: 13-50774 Document: 00512663668 Page: 1 Date Filed: 06/13/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-50774
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
June 13, 2014
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
JOSE NUNEZ-PALACIOS,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:13-CR-3-1
Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM: *
Jose Nunez-Palacios appeals the 60-month above-guidelines sentence
imposed by the district court after he pleaded guilty to illegal reentry following
deportation in violation of 8 U.S.C. § 1326. Nunez-Palacios argues that the
above-guidelines sentence imposed by the district court was substantively
unreasonable because it failed to take into account the fact that most of his
unscored convictions were for driving offenses, it failed to give adequate weight
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-50774 Document: 00512663668 Page: 2 Date Filed: 06/13/2014
No. 13-50774
to his benign motive for returning to this country, and it failed to give adequate
weight to the fact that he had no prior immigration offenses and that his
longest prior sentence was 364 days.
The district court considered the arguments of the parties and the
presentence report and was free to conclude, as it did, that the guidelines range
was inadequate in light of 18 U.S.C. § 3553(a)’s sentencing factors. The district
court was particularly concerned that Nunez-Palacios had prior convictions
that were not counted under the Guidelines. The uncounted criminal history
included convictions for aggravated battery and battery. The district court also
noted the fact that Nunez-Palacios illegally reentered the country about seven
months after being removed from the country following a scored conviction for
battery of a pregnant woman.
The record demonstrates that the district court’s decision to impose a
non-guidelines sentence was based on permissible factors that advanced the
objectives set forth in § 3553(a) and was justified by the facts of the case. See
United States v. Smith, 440 F.3d 704, 708-09 (5th Cir. 2006). Additionally, the
variance does not represent an abuse of the district court’s sentencing
discretion when considered in light of the totality of the circumstances. See
Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Brantley, 537
F.3d 347, 349 (5th Cir. 2008).
Accordingly, the district court’s judgment is AFFIRMED.
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