     Case: 11-50058     Document: 00511610017         Page: 1     Date Filed: 09/22/2011




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

                                                                            FILED
                                                                        September 22, 2011
                                     No. 11-50058
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ALEJANDRO VALDEZ-ACOSTA, also known as Alex Mancilla, also known as
Alejandro Mancilla, also known as David Lira,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:10-CR-643-1


Before WIENER, GARZA, and CLEMENT, Circuit Judges
PER CURIAM:*
        Plaintiff-Appellee Alejandro Valdez-Acosta (Valdez) pleaded guilty to one
count of illegal reentry in violation of 8 U.S.C. § 1326. He was sentenced to 60
months of imprisonment.
        Valdez’s sole contention on appeal is that his sentence, which represents
an upward variance from the advisory guidelines range of 24 to 30 months, is
greater than necessary to effectuate the sentencing goals of 18 U.S.C. § 3553(a).


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-50058

He asserts that the Guidelines adequately accounted for his criminal history and
overstated the seriousness of his illegal reentry offense. He also claims that the
district court failed to give proper weight to his history and circumstances in
determining his sentence.
      After United States v. Booker, 543 U.S. 220 (2005), we review sentences for
reasonableness in light of the sentencing factors in § 3553(a). United States v.
Mares, 402 F.3d 511, 519-20 (5th Cir. 2005). Because Valdez does not raise any
procedural challenges to his sentence, we consider only the substantive
reasonableness of his sentence. See Gall v. United States, 552 U.S. 38, 51 (2007).
We review “the substantive reasonableness of the sentence imposed under an
abuse-of-discretion standard.” United States v. Delgado-Martinez, 564 F.3d 750,
751 (5th Cir. 2009) (internal quotation marks and citation omitted).
      Ordinarily, we review a district court’s application of the Sentencing
Guidelines de novo and its factual findings for clear error. United States v.
Rodriguez, 602 F.3d 346, 362 (5th Cir. 2010). If, however, a defendant has not
preserved an issue for review in the district court, we review such issue for plain
error. See United States v. Price, 516 F.3d 285, 286-87 (5th Cir. 2008).
      Arguably, Valdez’s challenge to his sentence should be reviewed for plain
error because he neither specifically objected to the substantive reasonableness
of his sentence nor contended, as he does now, that his sentence was greater
than necessary to effectuate the goals of § 3553(a) for the reasons he raises on
appeal. See United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir.
2009). Nevertheless, his argument on appeal is unavailing even under the
ordinary standard of review.
      Appellate review for substantive reasonableness is “highly deferential”
because the sentencing court is in a better position than are we to find facts and
judge their import under the § 3553(a) factors with respect to a particular
defendant. United States v. Key, 599 F.3d 469, 473 (5th Cir. 2010), cert. denied,
131 S. Ct. 997 (2011). The record reflects that the district court considered

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                                  No. 11-50058

Valdez’s characteristics and history but found those factors to be outweighed by
Valdez’s significant criminal record and the need to protect the public against
future criminal conduct. The district court was free to conclude, as it did, that
the guidelines range gave insufficient weight to some of the sentencing factors,
specifically Valdez’s significant criminal history, the need to protect the public
from further crimes, and the need for deterrence. See United States v. Williams,
517 F.3d 801, 809 (5th Cir. 2008); § 3553(a).
      The district court’s determination that a variance was appropriate is
justified by the § 3553(a) factors and is not unreasonable under the
circumstances. See United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008).
Further, we have upheld similar and more significant variances. See, e.g., id. at
349-50 (upholding an upward variance to 180 months from an advisory
maximum of 51 months); United States v. Jones, 444 F.3d 430, 433, 441-42 (5th
Cir. 2006) (affirming an upward variance or departure to 120 months from a
range of 46 to 57 months).
      Accordingly, the judgment of the district court is AFFIRMED.




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