     Case: 09-50797     Document: 00511143806          Page: 1    Date Filed: 06/16/2010




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

                                                 FILED
                                                                            June 16, 2010
                                     No. 09-50797
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

MANUEL ANTONIO MATA,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 7:04-CR-67-3


Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
        Manuel Antonio Mata appeals the 100-month sentence he received on
resentencing following the grant of his 28 U.S.C. § 2255 motion. He contends
that the sentence imposed, which constituted an upward variance from the
applicable guidelines range of 33 to 41 months of imprisonment, was
unreasonable.
        This court reviews a district court’s sentencing decision for reasonableness,
under the abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 50-51

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-50797    Document: 00511143806 Page: 2         Date Filed: 06/16/2010
                                 No. 09-50797

(2007). “Appellate review is highly deferential as the sentencing judge is in a
superior position to find facts and judge their import under [18 U.S.C.] § 3553(a)
with respect to a particular defendant.” United States v. Campos-Maldonado,
531 F.3d 337, 339 (5th Cir.), cert. denied, 129 S. Ct. 328 (2008). In reviewing a
non-guidelines sentence for substantive unreasonableness, the court will
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).   This court also reviews whether the § 3553(a) factors support the
sentence and gives deference to the district court’s determination that the
§ 3553(a) factors justify the variance. Id.
      Mata contends that the district court erred in applying the § 3353(a)
factors in his case, urging that it overstated the seriousness of his offense, which
did not result in any injury or pose a public danger; that it erroneously relied on
his gang membership when there was no evidence tying that membership to any
future dangerousness; that it ignored favorable personal characteristics,
including his intelligence and well-mannered behavior at court appearances;
that it should not have relied on his criminal history in support as that history
was already accounted for in the guidelines calculation; and that the sentence
imposed was overly long compared to those doubtlessly received by other
similarly situated defendants.
      The district court supported its sentencing determination with reference
to the § 3553(a) factors, specifically citing § 3553(a)(1), the nature and
circumstances of the offense and Mata’s history and characteristics, and
§ 3553(a)(2)(A), (B), and (C), the need to provide just punishment, adequate
deterrence, and public protection from further crimes of Mata. Moreover, the
district court’s extensive discussion at the resentencing hearing reflects
consideration of the facts of the instant offense and the facts set forth in the
PSR. Though it is true that the offense did not result in any physical injury,
Mata’s argument that it was not an inherently dangerous one is disingenuous

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                                 No. 09-50797

given that the offense conduct involved his exchanging a quantity of heroin for
a firearm within 1,000 feet of a school, which firearm he then attempted to sell
through a fellow member of the Barrio Azteca prison gang. Mata cites no
authority in support of the argument that his admitted gang membership may
not be considered as part of his personal history and characteristics under
§ 3553(a)(1). Additionally, the district court acted appropriately in considering
whether the guidelines calculation sufficiently addressed the need to protect the
public or to provide adequate deterrence or just punishment given Mata’s
recidivist tendencies and the fact that prior sentences had not prevented his
return to crime. See § 3553(a)(2)(A), (B), and (C).
      Mata’s contention that his sentence is longer than sentences received by
similarly situated defendants is wholly conclusional. The fact that the district
court varied substantially from the guidelines range, standing alone, is
insufficient to show that the sentence imposed is unreasonable. See Brantley,
537 F.3d at 349-50; United States v. Jones, 444 F.3d 430, 433, 441-42 (5th Cir.
2006); United States v. Smith, 417 F.3d 483, 492 & n.40 (5th Cir. 2005). Mata’s
arguments do not show a clear error of judgment on the district court’s part in
balancing the § 3553(a) factors; instead, they constitute a mere disagreement
with the district court’s weighing of the factors. See United States v. Peltier, 505
F.3d 389, 392 (5th Cir. 2007). Given the significant deference that is due to a
district court’s consideration of the § 3553(a) factors and the district court’s
substantial reasons for its sentencing decision, the district court’s judgment is
AFFIRMED. See Gall, 522 U.S. at 50-53; Brantley, 537 F.3d at 349.




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