     Case: 09-41242 Document: 00511285768 Page: 1 Date Filed: 11/05/2010




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

                                                 FILED
                                                                          November 5, 2010
                                     No. 09-41242
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

HUMBERTO LOMA-PEREZ,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 2:09-CR-715-1


Before KING, DeMOSS, and DENNIS, Circuit Judges.
PER CURIAM:*
       Humberto Loma-Perez (Loma) appeals from the 22-month non-guidelines
sentence imposed by the district court following his conviction for illegal reentry.
Even if Loma preserved in the district court the errors he now alleges, he fails
to show that his sentence is unreasonable. See Gall v. United States, 552 U.S.
38, 51 (2007). Contrary to Loma’s contention, it was not improper for the district
court to consider for sentencing purposes crimes that he committed in the 1990’s,
including auto larceny, simply because they were too old to contribute to 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
    Case: 09-41242 Document: 00511285768 Page: 2 Date Filed: 11/05/2010

                                 No. 09-41242

guidelines range. See 18 U.S.C. § 3553(a). Further, Loma’s argument that he
has overcome the alcoholism that caused him to commit crimes in the past
ignores that he committed, but was not prosecuted for, four other illegal
reentries between 1999 and 2008; the last two of these reentries, as well as the
instant count of conviction, were committed following his alleged sobriety.
Under these circumstances, Loma fails to show that the district court abused its
discretion by imposing a sentence above the guidelines range to protect the
public and to deter Loma from committing future crimes. See Gall, 552 U.S. at
51; § 3553(a).
      The four-month upward variance from the guidelines range of 18 to 22
months of imprisonment is considerably less than other sentences that this court
has affirmed. See United States v. Smith, 440 F.3d 704, 708 n.5, 709-10 (5th Cir.
2006) (upholding variance from guidelines range maximum of 27 months to 60
months); United States v. Smith, 417 F.3d 483, 492 (5th Cir. 2005) (upholding
departure from guidelines range maximum of 41 months to 120 months).
      AFFIRMED.




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