     Case: 11-50845     Document: 00511878396         Page: 1     Date Filed: 06/06/2012




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

                                                                            FILED
                                                                            June 6, 2012
                                     No. 11-50845
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

JUAN FIDENCIO MARTINEZ-MATA, also known as Fidencio Martinez, also
known as Juan Jose Martinez, also known as Juan Fidencio Martinez, also
known as Juan Martinez, also known as Juan F. Martinez, also known as Juan
Manuel Mata Rivera, also known as Juan Antonio Martinez, also known as Juan
Fidencio, also known as Juan Fidencio Martinz, also known as Fedencio
Martinez,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:11-CR-283-1


Before SMITH, BARKSDALE, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Juan Fidencio Martinez-Mata pleaded guilty, without the benefit of a plea
agreement, to having been found unlawfully in the United States, after having
been deported. His advisory Guidelines sentencing range was 24 to 30-months’


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-50845

imprisonment, but the district court imposed a sentence of, inter alia, 60-
months, explaining that Martinez had previously been removed from the United
States on five occasions (twice following illegal-reentry convictions) and that he
continued to flout the immigration laws and engage in other criminal conduct.
      As he did at sentencing, Martinez challenges his sentence as substantively
unreasonable. Post-Booker, the Sentencing Guidelines are advisory only, and a
sentence is reviewed for reasonableness under an abuse-of-discretion standard,
taking into account the totality of the circumstances. Gall v. United States, 552
U.S. 38, 51 (2007). Where, as here, the district court varies upward from the
Guidelines range, our court must determine whether the sentence “unreasonably
fails to reflect” the 18 U.S.C. § 3553(a) sentencing factors. United States v.
Smith, 440 F.3d 704, 708 (5th Cir. 2006). An above-Guidelines sentence is
unreasonable if it: “(1) does not account for a factor that should have received
significant weight, (2) gives significant weight to an irrelevant or improper
factor, or (3) represents a clear error of judgment in balancing the sentencing
factors”. Id. The extent of the variance from the Guidelines range is also
considered. Id. at 707.
      Martinez’ contention that his criminal-history score accounted for his past
crimes and recidivism fails because the score did not take into account: several
of his prior convictions; and that prior, more lenient sentences had not deterred
him from continuing to reenter the country illegally. In any event, a district
court may vary upward based on factors already considered by the Guidelines.
E.g., United States v. Williams, 517 F.3d 801, 809-13 (5th Cir. 2008). Moreover,
these complaints amount to a mere disagreement with the weight the district
court gave to the various sentencing factors and thus are insufficient to warrant
reversal. Gall, 552 U.S. at 51 (explaining appellate courts will not reweigh
sentencing factors).
      Our court has previously rejected the contention that illegal reentry is
merely a trespass offense that is treated too harshly under Guideline § 2L1.2.

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                                  No. 11-50845

United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006). Further, even
if, as Martinez suggests, a shorter sentence would have been sufficient to deter
him, that is insufficient to warrant reversal, given the district court’s wide
discretion. E.g., United States v. York, 600 F.3d 347, 361-62 (5th Cir. 2010).
      Although the sentence represents a substantial increase from the
Guidelines range, the district court was in the best position to judge Martinez
and the circumstances of the offense, and the reasons given by the district court
sufficiently support the sentence. The court tied the reasons for its sentence to
specific facts and particular 18 U.S.C. § 3553(a) factors, which were sufficient to
justify the extent of the variance. The court made an individualized assessment
and was free to conclude, as it did, that in Martinez’ case, the Guidelines range
gave insufficient weight to some of the sentencing factors, including Martinez’
history and characteristics, the need to protect the public, and the need to deter
Martinez from continuing to violate the law. 18 U.S.C. § 3553(a).
      AFFIRMED.




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