     Case: 10-11268     Document: 00511582072         Page: 1     Date Filed: 08/24/2011




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

                                                                            FILED
                                                                          August 24, 2011
                                     No. 10-11268
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

MARCOS DIAZ-CARDOSO,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 6:10-CR-39-1


Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
        Marcos Diaz-Cardoso (Diaz) pleaded guilty to one count of being in the
United States illegally after deportation and was sentenced to the statutory
maximum sentence of 24 months in prison. The sentence was a non-guidelines
variance from the advisory sentencing range of six to 12 months.
        Diaz contends that the district court wrongly relied on unscored
convictions and that the district court did not adequately explain its reasons for
relying on those convictions.         He argues that, by deviating based on his

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-11268

uncounted convictions, the court was expressing a disagreement with the
general guidelines policy against counting them and that a more careful
explanation of the sentence and more careful appellate scrutiny is therefore
required under Kimbrough v. United States, 552 U.S. 85, 109 (2007). The
sentence is reviewed for reasonableness under an abuse-of-discretion standard.
See Gall v. United States, 552 U.S. 38, 46 (2007); Rita v. United States, 551 U.S.
338, 351 (2007).
      No special degree of scrutiny is invoked by the district court’s reliance of
unscored convictions, allegedly in disagreement with the Sentencing
Commission’s policy against counting them. Where the sentence is tailored to
the “special conditions of a particular offender,” our deference is great and no
special degree of scrutiny is required. See United States v. Simmons, 568 F.3d
564, 569 (5th Cir. 2009). The district court made an “individualized assessment
based on the facts presented” and concluded that the guidelines range gave
insufficient weight to some of the sentencing factors. See United States v.
Williams, 517 F.3d 801, 809 (5th Cir. 2008) (internal quotation marks and
citation omitted). Therefore, the close scrutiny Diaz requests is not warranted.
      Because Diaz failed to object to the adequacy of the court’s explanation of
the sentence, that specific issue is subject to review for plain error. See United
States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009). Diaz is not
entitled to relief even under review for abuse of discretion. The district court
was required to “adequately explain the sentence to allow for meaningful
appellate review and to promote the perception of fair sentencing.”
Mondragon-Santiago, 564 F.3d at 360 (internal quotation marks and citation
omitted). The district court explained that a variance was justified by Diaz’s
uncounted convictions. The court also cited other 18 U.S.C. § 3553(a) factors
which it considered relevant, namely, the circumstances, history, and
characteristics of the defendant, the need for deterrence, and the need “to reflect
the seriousness of this offense and to promote respect for the law,” and “to

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                                 No. 10-11268

protect the public from further crimes of the defendant.” The explanation
permits meaningful review and was adequate.
      Further, Diaz’s uncounted convictions and similar criminal acts are valid
grounds for a sentence above the guidelines range.        See United States v.
Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir. 2006) (upholding departure based
on uncounted crimes and repeated illegal re-entries). That the Guidelines do not
count some prior convictions is not decisive because “a district court may rely
upon factors already incorporated by the Guidelines to support a non-Guidelines
sentence.” United States v. Brantley, 537 F.3d 347, 350 (5th Cir. 2008).
      The sentence was not substantively unreasonable. This court has affirmed
much greater variances. See, e.g., Brantley, 537 F.3d at 349-50 (upholding an
upward variance to 180 months from an advisory maximum of 51 months).
Because the court cited fact-specific reasons for imposing the sentence and its
reasons adequately reflected consideration of the § 3553(a) factors, the sentence
was reasonable, and the judgment is AFFIRMED.




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