     Case: 09-50897     Document: 00511187221          Page: 1    Date Filed: 07/28/2010




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

                                                 FILED
                                                                            July 28, 2010
                                     No. 09-50897
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

GILBERTO ESPINOZA-MORAN, also known as Gilberto Espinoza Moran,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 2:09-CR-65-1


Before REAVLEY, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Gilberto Espinoza-Moran pleaded guilty without the benefit of a plea
agreement to being unlawfully present in the United States following removal
in violation of 8 U.S.C. § 1326(a), (b).            Although the applicable advisory
sentencing guidelines range was 37 to 46 months of imprisonment, the district
court determined that a non-guidelines sentence was appropriate and sentenced
Espinoza-Moran to 60 months of imprisonment. Espinoza-Moran argues on
appeal that his sentence is unreasonable.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-50897    Document: 00511187221 Page: 2        Date Filed: 07/28/2010
                                 No. 09-50897

      Following United States v. Booker, 543 U.S. 220 (2005), our review of
sentences is for reasonableness in light of the sentencing factors set forth in 18
U.S.C. § 3553(a). See United States v. Mares, 402 F.3d 511, 518-19 (5th Cir.
2005). We first determine whether the district court committed procedural
error. See Gall v. United States, 552 U.S. 38, 51 (2007). If there is no procedural
error, we then “consider the substantive reasonableness of the sentence imposed
under an abuse-of-discretion standard.” Id.
      As Espinoza-Moran does not suggest that the sentencing court committed
any procedural errors in calculating or explaining the reasons for his sentence,
our review is confined to the substantive reasonableness of the sentence. See
United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008); Gall, 552 U.S. at 51.
We find no merit in Espinoza-Moran’s argument that the district court erred in
finding that the guidelines range did not adequately account for his criminal
history. See Brantley, 537 F.3d at 350. In light of the substantial criminal
conduct not counted under the Sentencing Guidelines, Espinoza’s 60-month
sentence was within the discretion of the district court and was substantively
reasonable under 18 U.S.C. § 3553(a). See Brantley, 537 F.3d at 348-50; United
States v. Jones, 444 F.3d 430, 433-34, 440-41 (5th Cir. 2006).
      AFFIRMED.




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