     Case: 12-41031       Document: 00512287934         Page: 1     Date Filed: 06/26/2013




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

                                                                            FILED
                                                                           June 26, 2013
                                     No. 12-41031
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ADONYS MISAEL LOPEZ-MORENO,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:12-CR-679-1


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Adonys Misael Lopez-Moreno appeals the sentence of 96 months of
imprisonment imposed following his guilty-plea conviction of being found in the
United States after a prior deportation. 8 U.S.C. § 1326(a) and (b). Pursuant to
Gall v. United States, 552 U.S. 38, 51 (2007), we engage in a bifurcated analysis
of the sentence. United States v. Delgado-Martinez, 564 F.3d 750, 752 (5th Cir.
2009).     Under that standard, we first examine whether the district court
committed any procedural errors, “such as failing to calculate (or improperly

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-41031

calculating) the Guidelines range, treating the Guidelines as mandatory, failing
to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous
facts, or failing to adequately explain the chosen sentence.” Gall, 552 U.S. at 51.
If the district court’s decision is procedurally sound, we then “consider the
substantive reasonableness of the sentence imposed under an abuse-of-discretion
standard, . . . tak[ing] into account the totality of the circumstances.” Id.
      Lopez-Moreno raises three procedural challenges to his sentence. He first
contends that the district court based the sentence on an erroneous assumption
that Lopez-Moreno received a sentence of 10 years’ probation on a prior
conviction for attempted sexual battery of a minor because the state court
determined that he was going to be deported and thus no longer a problem in the
United States. The first error resulted in a second and related error, Lopez-
Moreno asserts, because the district court refused to consider the mitigating
facts he presented. Lopez-Moreno did not raise these issues in the district court
and we thus review only for plain error. See Puckett v. United States, 556 U.S.
129, 135 (2009).
      Lopez-Moreno fails to explain, much less show, how the district court’s
suggested explanation for the prior sentence is a clearly erroneous fact or that
it was the basis of his sentence in the instant matter. The record indicates that
the district court provided numerous reasons for the sentence, from which
recitation the above statement was only a brief digression. Specifically, the
district court noted the serious nature of Lopez-Moreno’s prior convictions and
the potential that Lopez-Moreno would commit future offenses. The district
court determined that Lopez-Moreno’s criminal history was greatly under-
represented in light of the severity of his prior offenses, the relatively light
penalties for those offenses, and the fact that several of the prior convictions
were not counted in arriving at the advisory guidelines sentencing range.
Further, the district court determined that those prior sentences had failed to
provide a deterrent to future criminal conduct and concluded that Lopez-Moreno

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presented a danger to the public. As to the mitigating facts Lopez-Moreno
offered in regard to his prior conviction for attempted sexual battery of a minor,
which consisted of his own statement that there had been no evidence he
committed the offense and that he had only pleaded guilty in order to be released
from prison on a sentence of probation, the district court indicated that it
considered his statement but found the detailed records of the plea and
conviction more credible than his denials of guilt. See 18 U.S.C. § 3553(a)
(setting forth the factors courts must consider in imposing sentences).
      In his third procedural challenge to his sentence, which challenge he
preserved, Lopez-Moreno contends that the district court failed to adequately
explain the above-guidelines sentence. “Congress requires the sentencing court
to state ‘the reasons for its imposition of the particular sentence.’” United States
v. Mondragon-Santiago, 564 F.3d 357, 362 (citation omitted) (quoting § 3553(c)).
While sentences within the Guidelines require “little explanation,” the district
court must more thoroughly articulate its reasons when it imposes a non-
guidelines sentence. United States v. Gomez-Herrera, 523 F.3d 554, 564-65 (5th
Cir. 2005); see also Rita v. United States, 551 U.S. 338, 357-59 (2007). The
district court’s reasons “should be fact specific and consistent” with the § 3553(a)
factors. United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006) (citation
omitted). We have held that there is no error if the sentencing record reveals the
reasons for the sentence imposed and permits effective review by the appellate
court. United States v. Key, 599 F.3d 469, 474-75 (5th Cir. 2010). As illustrated
by the discussion above, the district court provided a detailed explanation of how
it arrived at the sentence and its analysis of the sentencing factors of § 3553(a).
Because the district court sufficiently articulated its reasons for imposing the
sentence, Lopez-Moreno has shown no error. See Key, 599 F.3d at 474.
      As to the substantive reasonableness of his sentence, Lopez-Moreno argues
that the district court abused its discretion when it determined that a 96-month
sentence was the least sentence necessary to fulfill the purposes of sentencing.

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The Government argues that Lopez-Moreno’s assertion at sentencing that the
sentence was “greater than necessary to achieve the statutory purposes of
3553(a)” was insufficient to alert the court to the specific reasonableness
challenges he raises in this court and the claim should thus only be reviewed for
plain error. We need not determine whether plain error review is appropriate,
however,    because    Lopez-Moreno’s        arguments    fail   even   under    the
abuse-of-discretion standard. See United States v. Rodriguez, 523 F.3d 519, 525
(5th Cir. 2008).
      In reviewing a non-guidelines sentence for substantive reasonableness, we
consider “the totality of the circumstances, including the extent of any variance
from the Guidelines range.” United States v. Brantley, 537 F.3d 347, 349 (5th
Cir. 2008) (internal quotation marks and citation omitted). We review whether
the § 3553(a) factors support the sentence and give deference to the district
court’s determination that the § 3553(a) factors justify the variance. Id. “A
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.” United States v. Peltier, 505 F.3d 389, 392 (5th Cir. 2007)
(internal quotation marks and citation omitted).
      Before imposing the sentence, the district court considered the advisory
guidelines range, the statutory penalties, the § 3553(a) factors, the facts set forth
in the PSR, Lopez-Moreno’s statement, and Lopez-Moreno’s arguments at
sentencing (the Government made no arguments). The district court made an
individualized assessment and concluded that the guidelines range did not
adequately take into account the § 3553(a) factors, including the nature and
circumstances of Lopez-Moreno’s offense in light of his criminal history, Lopez-
Moreno’s history and characteristics, the need to afford adequate deterrence, and
the need to protect the public. Although Lopez-Moreno’s 96-month sentence is
39 months greater than the top of the 46-57-month guidelines range, we have

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upheld variances greater than the increase to his sentence. See Brantley, 537
F.3d at 348-50 (upholding a variance to concurrent terms of 120 months and 180
months from a guidelines range of 41 to 51 months); United States v. Jones, 444
F.3d 430, 433, 441-42 (5th Cir. 2006) (affirming an upward departure to 120
months from a guidelines range of 46 to 57 months); United States v. Smith, 417
F.3d 483, 492 (5th Cir. 2005) (upholding departure to 120-month sentence where
maximum of guidelines range was 41 months); United States v. Daughenbaugh,
49 F.3d 171, 174-75 (5th Cir. 1995) (affirming departure from guidelines
maximum of 71 months to sentence of 240 months).
      Lopez-Moreno’s arguments do not show a clear error of judgment on the
district court’s part in balancing the § 3553(a) factors. See Peltier, 505 F.3d at
392. Instead, they constitute a mere disagreement with the district court’s
weighing of those factors. Given the significant deference that is due to a district
court’s consideration of the § 3553(a) factors and the district court’s reasons for
its sentencing decision, Lopez-Moreno has not demonstrated that the sentence
is substantively unreasonable. See Gall, 552 U.S. at 50-53; Brantley, 537 F.3d
at 349.
      For these reasons, the judgment of the district court is AFFIRMED.




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