United States v. Ernesto Pecson, Jr.

Case: 17-10119 Document: 00514310297 Page: 1 Date Filed: 01/17/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 17-10119
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
January 17, 2018
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
ERNESTO BUMAGAT PECSON, JR., also known as Ernesto Bagamat Pecson,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:16-CR-189-1
Before REAVLEY, PRADO, and GRAVES, Circuit Judges.
PER CURIAM: *
Ernesto Bumagat Pecson, Jr., appeals the 120-month, above-guidelines
range sentence imposed following his guilty plea conviction for bank robbery,
in violation of 18 U.S.C. § 2113(a). He challenges only the substantive
reasonableness of the sentence, arguing that an upward departure or variance
was not justified under U.S.S.G. § 4A1.3 and that his sentence fails to take into
account his mitigating arguments regarding his traumatic childhood, his
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 17-10119
military service, and his low likelihood for recidivism; represents a clear error
of judgment in balancing the sentencing factors; and is greater than necessary
to achieve the sentencing goals of 18 U.S.C. § 3553(a).
After reviewing the substantive reasonableness of Pecson’s sentence
under a deferential abuse-of-discretion standard, see Gall v. United States,
552 U.S. 38, 51 (2007), we find no error. The district court did not impose an
upward departure under § 4A1.3(a), but instead indicated that the sentence
imposed was outside of the guidelines range based on the factors set forth in
§ 3553(a). Indeed, the district court stated that the 120-month sentence was
“absolutely necessary” to address the § 3553(a) sentencing factors, noting that
Pecson, who was 42 at the time of sentencing, had engaged in criminal conduct
since he was a teenager and that the presentence report contained 16 pages
devoted to his criminal history. The district court listened to Pecson’s
arguments in mitigation but concluded that Pecson did not “know how to abide
by the rules of society” and that an upward variance was warranted based on
the nature and circumstances of the offense, the history and characteristics of
Pecson, the need to provide adequate deterrence, and to protect the public from
further crimes. See § 3553(a)(1), (a)(2)(A), (B), (C).
Nothing suggests that the district court failed to consider a factor that
should have received significant weight, gave significant weight to an improper
factor, or made a clear error of judgment in balancing the sentencing factors.
See United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006). We therefore
defer to the district court’s determination that the § 3553(a) factors, on the
whole, merit a variance, see United States v. Brantley, 537 F.3d 347, 349 (5th
Cir. 2008), and justify the extent of the variance, see United States v.
Broussard, 669 F.3d 537, 551 (5th Cir. 2012), which, at 24 months above the
advisory sentencing range of 77 to 96 months of imprisonment, is less than
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other variances previously affirmed by this court, see, e.g., Brantley, 537 F.3d
at 348-50.
AFFIRMED.
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