Case: 18-10606      Document: 00514863038         Page: 1    Date Filed: 03/07/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                  United States Court of Appeals
                                                                           Fifth Circuit


                                    No. 18-10606                         FILED
                                  Summary Calendar                   March 7, 2019
                                                                    Lyle W. Cayce
                                                                         Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

GUADALUPE DIAMANTINE BARBA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:17-CR-183-1


Before JOLLY, COSTA, and HO, Circuit Judges.
PER CURIAM: *
       Guadalupe Diamantine Barba pleaded guilty to possession of stolen mail
and was sentenced above the advisory guideline range of 10 to 14 months to 24
months of imprisonment and two years of supervised release. Barba argues
that her sentence is procedurally unreasonable because the district court failed
to address the 18 U.S.C. § 3553 factors in imposing a sentence above the
advisory guidelines.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-10606    Document: 00514863038     Page: 2   Date Filed: 03/07/2019


                                 No. 18-10606

      In evaluating whether a district court committed a procedural error in
the sentencing determination, this court employs a de novo standard of review.
United States v. Garcia Mendoza, 

, 688 (5th Cir. 2009). While
within-guidelines sentences require “little explanation,” the district court must
give a more detailed explanation for a non-guidelines sentence. United States
v. Mares, 

, 519 (5th Cir. 2005).        “These reasons should be
fact-specific and consistent with the sentencing factors enumerated in
section 3553(a).” United States v. Smith, 

, 707 (5th Cir. 2006).
      Barba preserved this error for review by objecting. The district court
heard the parties’ arguments, permitted Barba and her counsel to present
mitigating evidence, and articulated its reasons for the upward variance based
on the § 3553(a) factors. The record makes the judge’s reasoning clear and
allows for effective review.    The district court was not required to offer
additional explanation for the sentence. See United States v. Fraga, 

, 439 (5th Cir. 2013).
      Barba argues that the sentence of 24 months, 10 months above the
advisory guideline maximum of 14 months, was substantively unreasonable.
Specifically, she states that the district court imposed the above-guideline
sentence and made part of it consecutive to pending state charges. She argues
that this conduct was relevant conduct already taken into account in imposing
the upward variance and so the sentences should have been concurrent.
      The substantive reasonableness of a sentence is reviewed for abuse of
discretion. Gall v. United States, 

, 51 (2007). In reviewing the
substantive reasonableness of a sentence, this court considers “the totality of
the circumstances, including the extent of any variance from the Guidelines
range” and “must give due deference to the district court’s decision that the
§ 3553(a) factors, on a whole, justify the extent of the variance.” 

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    Case: 18-10606     Document: 00514863038      Page: 3    Date Filed: 03/07/2019


                                  No. 18-10606

Guideline sentence unreasonably fails to reflect the statutory sentencing
factors where 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.” 

. “The fact that the appellate court might
reasonably have concluded that a different sentence was appropriate is
insufficient to justify reversal of the district court.” 

.
      Barba does not cite to any precedent that indicates the district court’s
consideration of pending charges in imposing an upward variance was
improper or an abuse of discretion. Regarding the imposition of consecutive
sentences, the district court ordered the 24-month sentence to run concurrently
to all pending charges that involved conduct relevant to the offense of
conviction such as forgery and fraudulent use of identification. The district
court ordered the sentence to run consecutively to pending charges that were
unrelated to the offense of conviction, such as drug charges and unauthorized
use of a vehicle. The district court did not abuse its discretion. See Setser
v. United States, 

, 236, 240 (2012); U.S.S.G. § 5G1.3(c).
      Barba argues that the district court violated her rights under the Fifth
Amendment’s Due Process Clause and the Sixth Amendment’s Confrontation
Clause by finding that she committed crimes that were the basis of pending
state charges based on information in the presentence report rather than on
first-hand testimony as to the events in question. She correctly acknowledges
that circuit precedent forecloses this argument, citing United States
v. Beydoun, 

, 108 (5th Cir. 2006).
      AFFIRMED.




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