United States v. Arturo Dominguez-Calderon

Case: 18-11238 Document: 00515007363 Page: 1 Date Filed: 06/24/2019

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 18-11238 June 24, 2019 Summary Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. ARTURO EDUARDO DOMINGUEZ-CALDERON, Defendant-Appellant

Appeal from the United States District Court for the Northern District of Texas USDC No. 4:18-CR-105-1

Before BENAVIDES, HAYNES, and WILLETT, Circuit Judges.

PER CURIAM: * Arturo Eduardo Dominguez-Calderon pleaded guilty to being an alien who had illegally reentered this country. The district court varied upward from the applicable guidelines sentencing range and sentenced Dominguez- Calderon to 48 months of imprisonment and a one-year term of supervised release. Dominguez-Calderon now appeals his sentence as being substantively unreasonable. He argues that the district court’s failure to reduce the extent Case: 18-11238 Document: 00515007363 Page: 2 Date Filed: 06/24/2019

No. 18-11238 of the upward variance after learning that he had been previously removed once and had voluntarily departed once, rather than being removed on three occasions, constituted a clear error of judgment.

Sentences, whether inside or outside the Guidelines, are reviewed for reasonableness in light of the 18 U.S.C. § 3553(a) factors. Gall v. United States, 552 U.S. 38, 51 (2007). A sentence is 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. Smith, 440 F.3d 704, 708 (5th Cir. 2006).

Dominguez-Calderon’s request that this court “review whether a defendant can reasonably receive the same upward variance irrespective of the number of prior removals and re-entries” and remand for resentencing does not comport with the case-specific approach to sentencing required by § 3553(a) and essentially asks this court to reweigh the sentencing factors, which this court will not do. See United States v. McElwee, 646 F.3d 328, 343-44 (5th Cir. 2011). Because Dominguez-Calderon does not otherwise challenge the upward variance, the judgment of the district court is AFFIRMED.