     Case: 12-20067       Document: 00512149575         Page: 1     Date Filed: 02/20/2013




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

                                                                            FILED
                                                                         February 20, 2013
                                     No. 12-20067
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

DAVID LOPEZ CORONADO, also known as David Lopez, also known as David
Lopez-Coronado, also known as David Lopez Coranando,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:11-CR-584-1


Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       David Lopez Coronado (Lopez) appeals the 40-month sentence imposed
following his guilty-plea conviction for illegal reentry after deportation. Lopez
argues that the district court’s (two-level) upward departure from the advisory
guidelines range of 27-33 months of imprisonment based on the understatement
of the seriousness of his prior conviction under Application Note 7 to U.S.S.G. §




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-20067     Document: 00512149575     Page: 2   Date Filed: 02/20/2013

                                  No. 12-20067

2L1.2 and the underrepresentation of his criminal history under § 4A1.3 was
substantively unreasonable.
      We review Lopez’s sentence for reasonableness in light of the sentencing
factors in 18 U.S.C. § 3553(a). United States v. Mares, 402 F.3d 511, 519-20 (5th
Cir. 2005). Reasonableness review, in the context of a guidelines departure,
requires this court to evaluate both the decision to depart upwardly and the
extent of the departure for an abuse of discretion. United States v. Zuniga-
Peralta, 442 F.3d 345, 347 (5th Cir. 2006). An upward departure is not an abuse
of discretion if the reasons for the departure advance the objectives of 18 U.S.C.
§ 3553(a) and are justified by the particular facts of the case. Id.
      Given Lopez’s criminal history of prior convictions for delivery of a
controlled substance and arson, and in light of his at least four previous illegal
reentries without prosecution, the district court did not abuse its discretion by
upwardly departing based on its finding that Lopez’s criminal history category
underrepresented the seriousness of his criminal history and that the 12-level
enhancement did not adequately reflect the extent or seriousness of the conduct
underlying his prior drug conviction. See § 4A1.3; § 2L1.2, comment. (n.7);
§ 3553(a); Zuniga-Peralta, 442 F.3d at 347-48. Lopez’s assertion that his
sentence was not reflective of sentences for other defendants engaged in similar
conduct is unavailing. See United States v. Willingham, 497 F.3d 541, 544 (5th
Cir. 2007). Additionally, Lopez has not shown that the district court abused its
discretion in determining the extent of the departure. See Zuniga-Peralta, 442
F.3d at 347-48; United States v. Smith, 417 F.3d 483, 492-93 (5th Cir. 2005);
United States v. Jones, 444 F.3d 430, 442-43 (5th Cir. 2006).
      Lopez also argues in a conclusory manner that his sentence is
unconstitutional because it is “grossly disproportionate” to that of persons
convicted of similar crimes and constitutes cruel and unusual punishment in
violation of the Eighth Amendment. There is no basis to conclude that the
two-level upward departure was either “grossly disproportionate” or violative of

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                                No. 12-20067

the Eighth Amendment’s prohibition against cruel and unusual punishment.
Lopez has not demonstrated plain error. See United States v. Ferguson, 211 F.3d
878, 886 (5th Cir. 2000).
      AFFIRMED.




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