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

                                                 FILED
                                                                         December 14, 2009

                                       No. 09-30033                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff - Appellee

v.

JUSTO PASTOR RODRIGUEZ-RODRIGUEZ

                                                   Defendant - Appellant




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 2:08-CR-00196


Before JONES, Chief Judge, and GARZA and DeMOSS, Circuit Judges.
PER CURIAM:*
       Justo Pastor Rodriguez-Rodriguez appeals a sentence of 120 months
imprisonment imposed upon his conviction for aggravated reentry following
deportation.     Because the district court committed no reversible error, we
AFFIRM.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                 No. 09-30033

                                I. Background
      Upon his third illegal entry into the United States, Rodriguez was charged
with one count of aggravated reentry following deportation in violation of
8 U.S.C. § 1326, to which he pleaded guilty. The pre-sentence investigation
report (“PSR”) calculated a total offense level of 17 and a criminal history
category of I, resulting in a United States sentencing guidelines range of 24 to
30 months imprisonment. However, the PSR noted that an upward departure
may be warranted pursuant to U.S.S.G. § 4A1.3 because Rodriguez’s criminal
history category underrepresented the seriousness of his criminal history, which
included two drug-related convictions and an assault conviction. The PSR also
concluded that Rodriguez did not accept responsibility for his previous offenses.
      The district court sentenced Rodriguez to 120 months imprisonment,
followed by five years of supervised release. At sentencing, the court stated:
      Your criminal history is under represented, and it appears you take
      no personal responsibility for any of the crimes that you have
      committed in the past. You have previously been deported and
      apparently that had no affect [sic] on you. It’s my belief that the
      only way to keep you from committing criminal offenses and from
      reentering the United States illegally is to incarcerate you, and I
      intend to upwardly depart.
Rodriguez contemporaneously objected to the sentence as excessive. He now
appeals, arguing that the district court did not properly consider the sentencing
factors set forth in 18 U.S.C. § 3553, impermissibly based an upward departure
upon a prior conviction already incorporated into his offense level, and imposed
a substantively unreasonable sentence under the totality of the circumstances.




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                                        No. 09-30033

                                 II. Standard of Review
       This court reviews a sentencing decision for reasonableness, applying an
abuse of discretion standard. United States v. Cisneros-Gutierrez, 517 F.3d 751,
764 (5th Cir. 2008). Whether a sentence falls within or outside the Guidelines
range,1 this court first determines if the district court committed procedural
error, then reviews the substantive reasonableness of the sentence. Id.
       Though an abuse of discretion standard applies to Rodriguez’s substantive
reasonableness challenge, this court must review Rodriguez’s procedural
objections for plain error. “The plain-error standard of review applies when a
party challenges a district court’s sentencing decision on grounds it did not
present to the district court.”          United States v. Duhon, 541 F.3d 391, 396
(5th Cir. 2008) (citing United States v. Willingham, 497 F.3d 541, 544 (5th Cir.
2007)). Before the district court, Rodriguez objected only to the excessiveness of
his sentence, not the court’s alleged failure to consider the § 3553 factors and
“double counting.” Accordingly, we will not correct Rodriguez’s sentence on
procedural grounds unless we find (1) an error, (2) that is plain, and (3) that
affects substantial rights. Id.




       1
          This court has distinguished Guidelines sentences—those falling within the
Guidelines range or based upon a departure authorized by the Guidelines—and non-
Guidelines sentences—a “variance” or a “deviation” that is not the result of a Guidelines-
authorized departure. United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008) (citation
omitted). Unlike a non-Guidelines sentence, a Guidelines sentence enjoys a presumption of
reasonableness. See Rita v. United States, 551 U.S. 338, 347, 127 S. Ct. 2456, 2462 (2007); United
States v. Gutierrez-Hernandez, 581 F.3d 251, 254 (5th Cir. 2009). Here, we need not decide
whether Rodriguez’s sentence is properly characterized as a departure or a variance because
the district court’s sentence withstands challenge with or without the benefit of the
presumption.

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                                        No. 09-30033

                                       III. Discussion
A. Procedural Error
      Rodriguez contends that the district court disregarded the § 3553 factors
and instead imposed a 120-month sentence to “promote enforcement” of the
immigration laws, which is not a § 3553 factor. This argument lacks merit. At
sentencing, the district court explicitly stated that it had considered the § 3553
factors. Moreover, the court’s reasons for the sentence included Rodriguez’s
underrepresented criminal history, his failure to accept responsibility for
previous crimes, his penchant for disregarding immigration laws despite prior
deportations, and the need to prevent Rodriguez from committing more criminal
offenses. Respectively, these reasons reflect the “history of the defendant,” 2 a
“characteristic[ ] of the defendant,” 3 the need “to promote respect for the law,” 4
and the need “to afford adequate deterrence to criminal conduct” 5 and “protect
the public from further crimes by the defendant,” 6 all of which are § 3553 factors.
What Rodriguez characterizes as an improper effort to “promote enforcement”
was merely the district court’s recognition of the need to deter future crimes and
to promote respect for the law.
      Rodriguez next urges that a 1996 cocaine conviction used to increase his
offense level by 12 levels should not have been used to justify an upward



      2
          18 U.S.C. § 3553(a)(1).
      3
          Id.
      4
          18 U.S.C. § 3553(a)(2)(A).
      5
          18 U.S.C. § 3553(a)(2)(B).
      6
          18 U.S.C. § 3553(a)(2)(C).

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                                         No. 09-30033

departure under U.S.S.G. § 4A1.3.7 This argument also fails. Double-counting
is permissible unless it is “specifically forbidden by the particular guideline at
issue.” United States v. Calbat, 266 F.3d 358, 364 (5th Cir. 2001). Rodriguez has
not shown, nor have we found, such a prohibition here. Accordingly, we find no
plain error in the district court’s procedure.
B. Substantive Unreasonableness
       In addition to asserting procedural error, Rodriguez challenges his
sentence–four times the Guidelines maximum 8 –as unreasonable. We disagree.
Rodriguez summarily argues that a mere desire to deter his continued illegal
reentry does not warrant a 120-month sentence, but as discussed above, the
district court’s reasons for the sentence included not only deterrence but also
Rodriguez’s underrepresented criminal history, failure to accept responsibility,
and disregard of prior deportations. In light of the deference this court owes to
the district court’s determination that the § 3553 factors justified 120 months
imprisonment,9 we cannot conclude that the district court abused its discretion.
Rodriguez’s conclusory statement that this punishment is “far greater than
necessary” does not persuade us otherwise.
                                         Conclusion
       For the foregoing reasons, the district court’s sentence is AFFIRMED.




       7
          The 1996 cocaine conviction was one of three convictions excluded from Rodriguez’s
criminal history category due to the age of the offense, yet recognized by the PSR and the
district court as a basis for an upward departure due to underrepresented criminal history.
       8
       We note that “the mere fact that a . . . sentence exceeds by several times the guideline
maximum is of no independent consequence in determining whether the sentence is
reasonable.” United States v. Smith, 440 F.3d 704, 709 n.5 (5th Cir. 2006) (citation omitted).
       9
           Gall v. United States, 552 U.S. 38, 51–52, 128 S. Ct. 586, 597–98 (2007).

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