     Case: 09-10626     Document: 00511200871          Page: 1    Date Filed: 08/11/2010




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

                                                 FILED
                                                                           August 11, 2010
                                     No. 09-10626
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JOSE DANIEL VARGAS-VELASQUEZ,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 1:08-CR-76-1


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Jose Daniel Vargas-Velasquez (Vargas) appeals the
75-month sentence imposed following his guilty plea conviction for illegal reentry
after deportation. The district court imposed an upward variance from the
guidelines range of 21 to 27 months based, inter alia, on Vargas’s history and
characteristics, which included numerous convictions that were too old to be
counted when computing his criminal history score.                  Vargas presents two
arguments: (1) that the district court’s reasons for his sentence were inadequate

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-10626    Document: 00511200871 Page: 2         Date Filed: 08/11/2010
                                 No. 09-10626

because the court failed to explain why it disagreed with the Sentencing
Commission’s decision not to include aged convictions when calculating a
defendant’s criminal history score; and (2) that his sentence was unreasonable
because the district court failed to consider a factor that should have received
significant weight, his ability to earn a steady income.
      Vargas’s first claim, that the district court procedurally erred by not
adequately explaining its reasons for disagreeing with the Commission, is
unpersuasive. The district court’s reasons for the upward variance were fact-
specific and consistent with the 18 U.S.C. § 3553(a) sentencing factors. See
United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006). In particular, the
district court carefully weighed the § 3553(a) factors and articulated sufficiently
compelling reasons to justify the 75-month sentence. The court noted his four
prior DWI convictions; his six prior convictions that were not used to calculate
his criminal history category; his prior convictions for resisting arrest, including
assaulting a peace officer; his prior drug conviction; his evident lack of respect
for the law; the need for deterrence; and the need to protect the public. The
district court’s reasons were sufficient to justify the variance and the extent and
to satisfy the requirement that the court give reasons to permit meaningful
appellate review. See Smith, 440 F.3d at 707. Accordingly, Vargas has not
shown plain error in connection with the district court’s reasons. See United
States v. Peltier, 505 F.3d 389, 391-94 (5th Cir. 2007).
      Vargas’s second claim, that his sentence is unreasonable, is likewise
unavailing. The district court made the required individualized assessment and
was free to conclude, as it did, that in Vargas’ s case the guidelines range gave
insufficient weight to some of the sentencing factors, including his history and
characteristics, the seriousness of the offense, the need to provide just
punishment, and the need for deterrence. See United States v. Williams, 517
F.3d 801, 809 (5th Cir. 2008); § 3553(a). Furthermore, although Vargas contends
that the court did not consider a factor that should have been afforded

                                         2
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                                No. 09-10626

significant weight, that is, his ability to earn a steady income, he presents no
convincing argument that this factor is substantial enough that it should have
been weighted more heavily. See Smith, 440 F.3d at 708. Accordingly, Vargas
has not established that his sentence was unreasonable.
      The district court’s judgment is AFFIRMED.




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