     Case: 12-41062       Document: 00512376909         Page: 1     Date Filed: 09/17/2013




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

                                                                            FILED
                                                                        September 17, 2013
                                     No. 12-41062
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

MANUEL ESPINOZA-ROCHA,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:12-CR-735-1


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Manuel Espinoza-Rocha appeals the 96-month sentence imposed following
his guilty plea conviction for illegal reentry after deportation in violation of 8
U.S.C. § 1326. He contends that the district court’s upward departure and
variance from the recommended Guidelines range of 57 to 71 months was
procedurally and substantively unreasonable. We review sentences first for
procedural error and then for substantive reasonableness, which we review for
an abuse of discretion. Gall v. United States, 552 U.S. 38, 49-51 (2007).

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-41062     Document: 00512376909      Page: 2   Date Filed: 09/17/2013

                                  No. 12-41062

      For the first time on appeal, Espinoza argues that the district court relied
on the “clearly materially erroneous assumption” that he received a lenient
sentence for a prior conviction. Espinoza fails to show that the district court
plainly erred in reciting the prior sentence imposed, in concluding that a five
year sentence was light compared to the maximum possible sentence of 20 years,
or that any alleged error was material in light of the numerous other factors the
district court cited in support of the sentence. See United States v. Warren, 720
F.3d 321, 331 (5th Cir. 2013); United States v. Smith, 417 F.3d 483, 492-93 (5th
Cir. 2005). The district court pointed out that Espinoza had a number of
convictions for driving while intoxicated and many crimes for which he did not
receive any criminal history points. Specifically, the court noted Espinoza’s prior
conviction for sexual assault in 1994 and his immediate illegal reentry into the
United States and drunk driving conviction thereafter. The district court’s
rejection of Espinoza’s arguments in favor of mitigation fell well within its wide
discretion in such matters and thus also resulted in no plain error. See United
States v. Moore, 708 F.3d 639, 651 n.6 (5th Cir. 2013).
      Espinoza contends that the district court procedurally erred by failing to
adequately explain the upward departure or variance. Although it is unclear
from the record whether Espinoza waived this challenge, we need not decide the
standard of review as his contention fails under any standard. See United States
v. Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008). After reviewing the record, we
are satisfied that the district court provided a sufficient explanation for the
upward variance and the extent of the variance. See United States v. Smith, 440
F.3d 704, 707-10 (5th Cir. 2006). We do not consider the propriety of the
sentence as an upward departure pursuant to U.S.S.G. § 4A1.3 because the
sentence may be affirmed on the district court’s alternate basis for the sentence
as an upward variance justified by the 18 U.S.C. § 3553(a) factors. See United
States v. Bonilla, 524 F.3d 647, 656-59 (5th Cir. 2008).



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    Case: 12-41062    Document: 00512376909      Page: 3    Date Filed: 09/17/2013

                                  No. 12-41062

      As to the substantive reasonableness of the sentence, the district court tied
its detailed explanation of the reasons for the sentence to specific facts and
particular § 3553(a) factors. The explanation was sufficient to justify the
variance and its extent. See Gall, 552 U.S. at 49-53. Although the district court
varied upward to 96 months of imprisonment from the 57 to 71 month guidelines
range, the variation was not unreasonable. See United States v. McElwee, 646
F.3d 328, 342, 344-45 (5th Cir. 2011).        The district court’s judgment is
AFFIRMED.




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