     Case: 12-41102       Document: 00512346542           Page: 1    Date Filed: 08/19/2013




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

                                                                              FILED
                                                                           August 19, 2013
                                     No. 12-41102
                                   Summary Calendar                          Lyle W. Cayce
                                                                                  Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

SANTOS OVIDIO FUENTES-GONZALEZ,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:12-CR-675-1


Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM:*
       Santos Ovidio Fuentes-Gonzalez was convicted of illegal reentry into the
United States and was sentenced to serve the statutory maximum of 24 months
in prison after the district court determined that the guidelines range of one
to seven months was inappropriate. He argues that his sentence is plainly
erroneous because the district court did not offer adequate reasons for its choice
of sentence and effectively denied him credit for acceptance of responsibility.

       *
         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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 12-41102     Document: 00512346542      Page: 2   Date Filed: 08/19/2013

                                  No. 12-41102

      After United States v. Booker, 543 U.S. 220 (2005), which rendered the
Sentencing Guidelines advisory, we review sentences for reasonableness in
light of the factors set out in 18 U.S.C. § 3553(a). Gall v. United States, 552
U.S. 38, 49-51 (2007). However, because Fuentes-Gonzalez failed to raise any
objection to his sentence, we review his challenges to it for plain error only. See
United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009). To
meet this standard, he must show a forfeited error that is clear or obvious and
that affects his substantial rights. See Puckett v. United States, 556 U.S. 129,
135 (2009). If this showing is made, we have the discretion to correct the error,
but will do so only if it “seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings.” Id. (internal quotation marks and citation
omitted).
      First, Fuentes-Gonzalez argues that his sentence is procedurally
unreasonable because the district court did not give adequate reasons to
explain why it varied to the extent it did. Our review of the record belies this
assertion and shows that the district court chose the sentence it found most
appropriate in light of Fuentes-Gonzalez’s prior offenses, the danger he posed
to society, and the need for deterrence. The district court’s explanation for the
sentence imposed was proper because it was “fact-specific and consistent with
the sentencing factors enumerated in 18 U.S.C. [§] 3553(a).” See United States
v. Smith, 440 F.3d 704, 707 (5th Cir. 2006). Fuentes-Gonzalez’s reliance on
United States v. Kirkpatrick, 589 F.3d 414, 415-16 (7th Cir.2009), is misplaced
because that case is materially distinguishable. Unlike Kirkpatrick, the district
court’s reasons for imposing sentence were not conclusional and do not indicate
that the sentence was arbitrarily chosen. We need not address Fuentes-
Gonzalez’s challenge to his sentence as the result of an upward departure
pursuant to U.S.S.G. § 4A1.3 because the sentence may be affirmed on the


                                        2
    Case: 12-41102   Document: 00512346542     Page: 3   Date Filed: 08/19/2013

                                No. 12-41102

alternate basis that it was an upward variance warranted by § 3553(a). See
United States v. Bonilla, 524 F.3d 647, 656–59 (5th Cir. 2009).
      Likewise unavailing is Fuentes-Gonzalez’s argument that his sentence
is substantively erroneous because the district court’s decision to impose the
statutory maximum sentence effectively denied him an adjustment for
acceptance of responsibility.   District courts may upwardly depart when
sentencing defendants who have received acceptance of responsibility
adjustments. See United States v. Zelaya-Rosales, 707 F.3d 542, 544 (5th Cir.
2013); United States v. Jones, 444 F.3d 430, 433-34, 443 (5th Cir.2006);United
States Zuniga-Peralta, 442 F.3d. 345, 346-48 (5th Cir. 2006). Fuentes-Gonzalez
has shown no error, plain or otherwise, in connection with his sentence.
Accordingly, the judgment of the district court is AFFIRMED.




                                      3
