UNITED STATES v. PENA SANCHEZ (2019)

Raul Pena-Sanchez, Jr., pleaded guilty to violating 18 U.S.C. § 554(a) by exporting ammunition from the United States to Mexico. The district court calculated an advisory sentencing guidelines range of 46 to 57 months but sentenced Pena-Sanchez to 70 months of imprisonment. He now appeals his sentence, and we affirm.

This court recognizes three types of sentences: (1) a sentence within the guidelines range, (2) an upward or downward departure authorized by the Sentencing Guidelines, and (3) a non-guidelines sentence, or variance, that is outside the guidelines range. See United States v. Smith, 440 F.3d 704, 706-07 (5th Cir. 2006). Here, the record as a whole indicates that the district court imposed the 70-month sentence in the alternative as either an upward departure or an upward variance. Pena-Sanchez challenges only the procedural reasonableness of the district court’s application of the guidelines departure provisions, but those provisions are inapplicable to the imposition of an upward variance. See, e.g., United States v. Gutierrez, 635 F.3d 148, 152-53 (5th Cir. 2011). He has therefore failed to brief any challenge to the imposition of his sentence as an upward variance, and we affirm on that unchallenged alternative basis. See United States v. Hebert, 813 F.3d 551, 561-62 (5th Cir. 2015); Capital Concepts Props. 85-1 v. Mut. First, Inc., 35 F.3d 170, 176 (5th Cir. 1994).

AFFIRMED.

FOOTNOTES

FOOTNOTE.  

PER CURIAM: * FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.