     Case: 09-20850     Document: 00511209884          Page: 1    Date Filed: 08/20/2010




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

                                                 FILED
                                                                           August 20, 2010
                                     No. 09-20850
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

MANUEL DE JESUS PEREZ ALVAREZ, also known as Manuel Jesus Perez,
also known as Manuel Perez, also known as Manuel De Jesus Perez-Alvarez,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:09-CR-380-1


Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
        Manuel de Jesus Perez Alvarez appeals the 48-month sentence imposed
following his conviction for illegal reentry. Alvarez argues that the sentence was
procedurally unreasonable because the district court did not adequately explain
its reasons for the sentence.            He also contends that his sentence was
substantively unreasonable because it overstates the seriousness of his offense,
which he characterizes as “an international trespass.” Alvarez further contends


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-20850

that he had good motives for reentering to the United States, because he
returned to see his mother and his child. He also argues that the district court’s
sentence did not take into account his personal history and characteristics.
      Because Alvarez did not object to his sentence, this court’s review is for
plain error. See United States v. Peltier, 505 F.3d 389, 391–92 (5th Cir. 2007).
To demonstrate plain error, Alvarez must show an error that is clear or obvious
and that affects his substantial rights. See United States v. Baker, 538 F.3d 324,
332 (5th Cir. 2008). If Alvarez makes such a showing, this court will correct
such an error only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Id.
      This court recognizes three different types of sentences: (1) a within-
guidelines sentence, (2) an upward or downward departure under the
Guidelines, and (3) a non-Guidelines sentence or “variance” that is outside of the
guideline range. United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008).
Although the parties’ briefs reflect uncertainty as to the type of sentence
imposed, the district court’s written Statement of Reasons (SOR) makes clear
that the district court upwardly departed under U.S.S.G. § 4A1.3(a)(4)(B) based
on the inadequacy of Alvarez’s criminal history category. The SOR shows that
Alvarez was sentenced within the guideline range of 46–51 months that resulted
from the upward departure.
      The district court thoroughly articulated fact-specific reasons for its
sentence that were consistent with the sentencing factors set forth in 18 U.S.C.
§ 3553(a). These reasons included Alvarez’s extensive criminal history, his
propensity for violence, and the district court’s determination that it was
necessary to separate Alvarez from society so that he would not cause additional
harm. The district court listened to Alvarez’s argument that he was a changed
person, but it rejected that argument, noting that Alvarez continued to act
irresponsibly.   Alvarez has not shown plain error in the district court’s
explanation for its sentence. See Baker, 538 F.3d at 332.

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                                No. 09-20850

      Because Alvarez was sentenced within the guideline range, the district
court’s sentence is entitled to a presumption of reasonableness. See United
States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).     Alvarez has failed to
overcome the presumption of reasonableness that attaches to such a sentence.
See United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008); United
States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006). Nor has Alvarez
shown plain error with regard to the issue of the substantive reasonableness of
the sentence. See Baker, 538 F.3d at 332.
      The judgment of the district court is AFFIRMED.




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