     Case: 10-50562 Document: 00511400604 Page: 1 Date Filed: 03/03/2011




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

                                                 FILED
                                                                            March 3, 2011
                                     No. 10-50562
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

JUAN CARLOS ESPINOZA-BENAVIDES, also known as Juan Carlos Espinoza-
Benavidas,

                                                   Defendant - Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                             USDC No. 2:09-CR-1138-1


Before WIENER, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Juan Carlos Espinoza-Benavides appeals his sentence imposed following
his guilty-plea conviction for illegal reentry into the United States. Espinoza
was sentenced to 60 months’ imprisonment, which constituted an upward
variance from his advisory Sentencing Guidelines range of 33 to 41 months. He
contends his sentence should be vacated as substantively unreasonable because
it was greater than necessary to satisfy the requirements of 18 U.S.C. § 3553(a).


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-50562

      Although, post-Booker, the Guidelines are advisory only, and an ultimate
sentence is reviewed for reasonableness under an abuse-of-discretion standard,
the district court must still properly calculate the Guideline-sentencing range
for use in deciding on the sentence to impose. Gall v. United States, 552 U.S. 38,
50-51 (2007). In that respect, its application of the Guidelines is reviewed de
novo; its factual findings, only for clear error.        E.g., United States v.
Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United States v. Villegas,
404 F.3d 355, 359 (5th Cir. 2005). Our court first examines whether the district
court committed any significant procedural error. Gall, 552 U.S. at 51. If the
decision is procedurally sound, we will then “consider the substantive
reasonableness of the sentence imposed under an abuse-of-discretion standard”.
Id. Because Espinoza does not claim procedural error, the only issue on appeal
is the substantive reasonableness of his sentence.
      Espinoza contends:     a within-Guidelines sentence would have been
sufficient under 18 U.S.C. § 3553(a); and the district court gave no reason why
a 60-month sentence was more appropriate. He also contends the court should
have proceeded cautiously in determining the extent of his upward variance,
because Sentencing Guideline § 2L1.2, governing his illegal-reentry conviction,
produces relatively high Guidelines ranges, as its application results in counting
defendants’ criminal history both in increasing their offense levels and in
calculating their criminal-history scores. Espinoza further asserts the court
failed to consider:   illegal reentry is, in effect, a minor crime involving
international trespass; and he returned to the United States based on a benign
motive—concern for the welfare of his mother.
      In pronouncing Espinoza’s sentence, the district court noted its upward
variance was justified in the light of: Espinoza’s uncounted criminal history; his
habitual commission of theft offenses; his prior conviction of a drug offense; his
refusal to show respect for the laws of the United States; the inability of prior
terms of imprisonment to deter him from criminal conduct; and his history and

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                                  No. 10-50562

characteristics of continuing to commit offenses.      Thus, the court made an
“individualized assessment based on the facts presented” and concluded that the
advisory-Sentencing Guidelines range gave insufficient weight to some of the
sentencing factors. United States v. Williams, 517 F.3d 801, 809 (5th Cir. 2008)
(internal citation and quotation marks omitted); see 18 U.S.C. § 3553(a). The
court cited fact-specific reasons for imposing a non-Guidelines sentence, and its
reasons for imposing a variance adequately reflected the § 3553(a) sentencing
factors. See United States v. Tzep-Mejia, 461 F.3d 522, 527 (5th Cir. 2006).
Accordingly, Espinonza’s above-Guidelines sentence was reasonable “under the
totality of the relevant statutory factors”. United States v. Brantley, 537 F.3d
347, 349 (5th Cir. 2008) (internal citation and quotation marks omitted).
      Espinoza’s remaining contentions are also without merit. Our court has
rejected the position that use of a prior conviction to both increase the offense
level and calculate the criminal-history category is impermissible. United States
v. Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert. denied, 130 S. Ct. 378 (2009). We
also have implicitly rejected the assertion that a sentence is excessive because
of illegal reentry’s allegedly being a minor trespassing crime. See United States
v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006). Finally, the district court
considered Espinoza’s motive for returning to the United States and concluded
it did not outweigh other sentencing factors justifying an upward variance. The
sentencing judge’s assessment of the § 3553(a) factors is entitled to deference.
Gall, 552 U.S. at 51; see United States v. Campos-Maldonado, 531 F.3d 337, 339
(5th Cir. 2008).
      AFFIRMED.




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