     Case: 12-50189     Document: 00512044826         Page: 1     Date Filed: 11/06/2012




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

                                                                            FILED
                                                                         November 6, 2012
                                     No. 12-50189
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

NOE CALDERA LAZO, also known as Noe Lazo Caldera,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:11-CR-2170-1


Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.
PER CURIAM:*
        Noe Caldera Lazo appeals the upward variance sentence of 41 months of
imprisonment imposed after his guilty plea conviction for attempted illegal
reentry into the United States after removal and the improper use of another’s
passport. He argues that the sentence was greater than necessary to effectuate
the goals of 18 U.S.C. § 3553(a). He argues that a sentence within the guidelines
range would have been sufficient but not greater than necessary to meet the
§ 3553(a) goals because he had not been convicted of the pending drug charges

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-50189    Document: 00512044826      Page: 2    Date Filed: 11/06/2012

                                  No. 12-50189

considered by the district court; the guidelines range was high for the relatively
minor offense; and the district court failed to consider his cultural assimilation
and his benign motive for returning to the United States of being with his
family.
      The district court considered Caldera Lazo’s arguments for a guidelines
sentence, including his acceptance of responsibility, his cultural assimilation, his
plans to remain in Mexico after release, and his young age at the time he
committed his prior offenses. The district court was concerned that Caldera
Lazo returned to the United States within two years after his removal and that
he had pending charges in Washington for possession of drugs with intent
distribute. The district court determined that an upward variance to 41 months
was warranted based on the § 3553(a) factors, including the need to reflect the
seriousness of the offense, to promote respect for the law, and to provide just
punishment; to afford adequate deterrence to criminal conduct; and to protect
the public. The sentence imposed “was reasonable under the totality of the
relevant statutory factors.” See United States v. Brantley, 537 F.3d 347, 349 (5th
Cir. 2008) (internal quotation marks and citation omitted). Caldera Lazo
essentially seeks to have his sentence vacated based on a reweighing of the
§ 3553(a) factors by this court, which appellate courts should not do. See Gall
v. United States, 552 U.S. 38, 51 (2007). There is nothing in the record that
indicates that the district court did not account for a factor that should have
received significant weight, gave significant weight to an irrelevant or improper
factor, or made a clear error of judgment in balancing the sentencing factors.
See United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006). Further, the
extent of the variance was reasonable. See United States v. Lopez-Velasquez, 526
F.3d 804, 805-08 (5th Cir. 2008); Brantley, 537 F.3d at 348-50; United States v.
Jones, 444 F.3d 430, 433, 441-42 (5th Cir. 2006).
      AFFIRMED.



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