     Case: 09-31210     Document: 00511645340         Page: 1     Date Filed: 10/26/2011




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

                                                                            FILED
                                                                         October 26, 2011
                                     No. 09-31210
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JUAN MARIN-CORONA,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 2:09-CR-147-1


Before WIENER, GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Juan Marin-Corona appeals the 60-month above-
guidelines sentence imposed after he pleaded guilty to aggravated reentry
following deportation.          He challenges the procedural and substantive
reasonableness of his sentence, arguing that the district court erroneously
calculated the guidelines range, did not provide notice of its intent to sentence
him above the guidelines range, and did not properly assess his nonviolent
criminal history and other mitigating circumstances.                    As Marin-Corona

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                       No. 09-31210

concedes, our review is for plain error. See United States v. Whitelaw, 580 F.3d
256, 259 (5th Cir. 2009).
      Specifically, Marin-Corona argues that the district court erred by applying
a 12-level increase pursuant to U.S.S.G. § 2L1.2(b)(1)(B) without reviewing any
Shepard1-approved documents to verify that his previous North Carolina
conviction qualified as a drug trafficking crime. Although the government has
supplemented the record with the judgment of conviction, we need not address
whether the record now supports application of the enhancement because even
if the district court committed an error in calculating the defendant’s guidelines
range, Marin-Corona cannot demonstrate that the error affected his substantial
rights. See United States v. Dickson, 632 F.3d 186, 191 (5th Cir.), cert. denied,
131 S. Ct. 2947 (2011) (concluding that an error in the application of the
Guidelines does not affect the defendant’s substantial rights unless the
defendant can show a “reasonable probability” that he would have received a
lesser sentence but for the error).
      The record demonstrates that the district court imposed a non-guidelines
sentence or variance. See United States v. Brantley, 537 F.3d 347, 349 (5th Cir.
2008). The district court did not cite a particular guidelines provision, but at
sentencing expressed concern about the length and seriousness of Marin-
Corona’s criminal history as well as the fact that he had twice reentered the
country illegally . The district court’s statement of reasons shows that it
imposed a non-guidelines sentence because of the nature and circumstances of
the offense and Marin-Corona’s history and characteristics, as well as to reflect
the seriousness of the offense, promote respect for the law, provide a just
punishment, adequately deter future criminal conduct, and protect the public
from further crimes.




      1
          Shepard v. United States, 544 U.S. 13, 16 (2005).

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                                  No. 09-31210

      As the district court imposed a non-guidelines sentence based on the 18
U.S.C. § 3553(a) factors, any error in the calculation of the guidelines range did
not affect the actual sentence; thus, Marin-Corona cannot demonstrate that but
for error, he would have received a lesser sentence. Dickson, 632 F.3d at 191.
Furthermore, because the district court did not depart from the Guidelines, but
instead imposed a sentencing variance, Marin-Corona was not entitled to
advance notice. See Irizarry v. United States, 553 U.S. 708, 716 (2008).
      In addition, the district court did not plainly err by concluding, after
considering all of the § 3553(a) factors, that a 60-month sentence —
substantially less than the statutory 20-year maximum –– was necessary to
reflect the seriousness of Marin-Corona’s criminal history and to deter future
crime. See 8 U.S.C. § 1326(b)(2). The district court was in the best position to
evaluate Marin-Corona’s history and characteristics as well as the need for the
sentence imposed to further the objectives set forth in § 3553(a) – such as
deterring future criminal activity, promoting respect for the laws, and protecting
the public from possible harm. The district court’s reasoned decision is entitled
to deference. See United States v. Gall, 552 U.S. at 38, 51-52 (2007); United
States v. Smith, 440 F.3d 704, 708-10 (5th Cir. 2006).
      Even taking into account Marin-Corona’s mitigating circumstances, such
as his health, the district court’s imposition of a 60-month sentence is not error,
much less plain error. Marin-Corona has an extensive criminal history, which
included several convictions for drug possession and driving while impaired, and
he has demonstrated his inability to refrain from illegally reentering the
country. See United States v. Gutierrez, 635 F.3d 148, 155 (5th Cir. 2011).
Further, the extent of the variance imposed by the district court is within the
range of other sentences that we have affirmed. See id. at 155 n.34 (collecting
cases); Brantley, 537 F.3d at 350 (finding no plain error where district court
imposed an upward sentencing variance of 180 months based on defendant’s



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extensive criminal history and the need deter future crime and protect the
public, where the top of the advisory guidelines range was 51 months).
     Accordingly, the judgment of the district court is AFFIRMED.




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