     Case: 10-11172     Document: 00511600784         Page: 1     Date Filed: 09/13/2011




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

                                                                            FILED
                                                                        September 13, 2011
                                     No. 10-11172
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JUAN GERARDO LANDA-ORDAZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:10-CR-107-1


Before SMITH, GARZA, and DeMOSS, Circuit Judges.
PER CURIAM:*
        Juan Gerardo Landa-Ordaz (Landa) appeals the sentence imposed
following his guilty plea conviction for being unlawfully present in the United
States following removal. The district court sentenced Landa to 40 months of
imprisonment, an upward variance from the guidelines sentence range of 21-27
months of imprisonment.
        Landa argues that the sentence was unreasonable. He asserts that the
district court did nothing more than pay lip service to any sentencing factor

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-11172   Document: 00511600784      Page: 2   Date Filed: 09/13/2011

                                  No. 10-11172

other than his criminal history, thereby failing to account for mitigating factors
that should have been given significant weight and making a clear error of
judgment in balancing the sentencing factors. He maintains that his criminal
history was given too much weight because it was used to raise his offense level
and criminal history category in the guidelines range calculations and then used
again to justify the upward variance from the guidelines range. He contends
that his cultural assimilation should have been given more weight because he
was brought to the United States when he was three years old, because he went
to school in the United States, because his family lived in the United States, and
because he had worked at numerous jobs in the United States. He argues that
the extent of the upward variance was too great because it would have taken an
additional four offense levels and one criminal history category for the 40-month
sentence to be within the guidelines range. He concludes that the sentence was
greater than necessary to reflect the seriousness of the offense, to provide
adequate punishment, to protect the public, and to avoid unwarranted sentence
disparities.
      Landa had a total offense level of 10 and a criminal history category of V,
and it would have taken a total offense level of 14 and a criminal history
category of VI to get to a guidelines sentence range including the 40-month
sentence. See U.S.S.G. Ch. 5, Pt. A (sentencing table). Nevertheless, the
sentence was only 13 months greater than the top end of the guidelines range.
The district court heard from three witnesses who made statements on Landa’s
behalf, and it explicitly stated that it had considered Landa’s arguments in
mitigation in determining the sentence. In addition to Landa’s prior convictions,
the district court found that Landa had committed the domestic violence assault
with which he was charged but not convicted, and Landa does not challenge this
factual finding on appeal. Although Landa’s criminal history was accounted for
in the guidelines sentence range, the district court was allowed to consider his
criminal history as a basis for an upward variance. United States v. Lopez-

                                        2
  Case: 10-11172    Document: 00511600784     Page: 3   Date Filed: 09/13/2011

                                 No. 10-11172

Velasquez, 526 F.3d 804, 807 (5th Cir. 2008). “While cultural assimilation may
be considered as a mitigating factor, United States v. Rodriguez-Montelongo, 263
F.3d 429, 433 (5th Cir. 2001), there is no requirement that a sentencing court
must accord it dispositive weight.” Lopez-Velasquez, 526 F.3d at 807. Given the
relatively small extent of the variance, Landa’s criminal history of five prior
convictions and three deportations, and the deference given to district court
determinations regarding § 3553(a) factors, Landa has not shown that the
sentence was unreasonable. See id.; Gall v. United States, 552 U.S. 38, 51
(2007).
      Landa argues that the district court violated his rights to due process and
equal protection and his right to a reasonable sentence free from an
unwarranted disparity because of the lack of a “fast-track” program in the
Northern District of Texas. As Landa concedes, this argument is foreclosed. See
United States v. Gomez-Herrera, 523 F.3d 554, 559-64 (5th Cir. 2008); Lopez-
Velasquez, 526 F.3d at 808.
      AFFIRMED.




                                       3
