     Case: 10-31104     Document: 00511662298         Page: 1     Date Filed: 11/10/2011




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

                                                                            FILED
                                                                        November 10, 2011
                                     No. 10-31104
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JOSE ANTONIO PALMA,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:09-CR-65-1


Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
        Jose Antonio Palma appeals the sentence of 180 months of imprisonment
imposed following his entry of a guilty plea to a charge of illegal reentry into the
United States of a previously deported alien. See 8 U.S.C. § 1326(b)(2). Palma
argues that his sentence is substantively unreasonable. He argues that the
district court erroneously treated his criminal history as under-represented in
severity and extent. Palma avers that the record did not support the district
court’s conclusion that he had a pattern of assaultive behavior and preyed on

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-31104

illegal alien victims. He contends that the district court abused its discretion in
the fact of and the degree of the departure or variance.
      We consider the substantive reasonableness of the sentence imposed under
an abuse-of-discretion standard, “tak[ing] into account the totality of the
circumstances.”     Gall v. United States, 552 U.S. 38, 51 (2007).               The
reasonableness inquiry on appeal must be guided by the sentencing
considerations set forth in 18 U.S.C. § 3553(a). United States v. Smith, 440 F.3d
704, 706 (5th Cir. 2006). That this court “might reasonably have concluded that
a different sentence was appropriate is insufficient to justify reversal of the
district court.” Gall, 552 U.S. at 51.
      Prior to imposing a sentence, the district court is ?still required to calculate
the guideline range and consider it advisory.” Smith, 440 F.3d at 707. The court
must use the “appropriate Guideline range as a frame of reference”and “must
more thoroughly articulate its reasons . . . than when it imposes a sentence
under the authority of the Sentencing Guidelines.” Id. (internal quotations and
citations omitted). The reasons must be “fact-specific” and consistent with the
§ 3553(a) sentencing factors. Id.
      The district court calculated the advisory guidelines range and thoroughly
articulated its extensive reasons, referencing the § 3553(a) factors, for the
sentence it imposed. See Smith, 440 F.3d at 707-08. After referring to the facts
in the presentence report and the evidence introduced at sentencing, the district
court determined that Palma had an extensive criminal history for his age and
one that demonstrated a propensity to commit future crimes, that Palma had
repeatedly received lenient sentences for serious crimes, and that Palma had
victimized illegal aliens. The district court expressed concern regarding the
violent nature of Palma’s prior and pending offenses. Specifically, the district
court noted that Palma’s personal history and characteristics indicated a
“propensity to ignore [the] laws of the United States,” and an “[in]ability to
control his anger.” The court explained that the sentence was needed to provide

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                                 No. 10-31104

just punishment and to send a message that would deter similar future crimes
by Palma. Moreover, because of the violent nature of Palma’s prior conduct, the
district court determined that the sentence was necessary to protect the public
from Palma.
      The record demonstrates that the district court’s rationale justified the
above-guidelines sentence. The district court considered the Guidelines and the
§ 3553(a) factors, including Palma’s history and characteristics, the nature and
circumstances of the instant offense, the need to deter future criminal conduct,
and the need to protect the public and promote respect for the law. See United
States v. Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir. 2006). Palma has not
shown that the district court abused its discretion by imposing an above-
guidelines sentence. See United States v. Zuniga-Peralta, 442 F.3d 345, 347 (5th
Cir. 2006); Smith, 440 F.3d at 708-10.
      The extent of the increase above the advisory guidelines range was
moreover not unreasonably excessive under the circumstances. Although the
180-month sentence was 109 months greater than the top of Palma’s guidelines
range, it does not exceed the 20-year statutory maximum term of imprisonment
for the enhanced illegal reentry offense. See § 1326(b)(2). This court has
affirmed similar and more substantial above-guidelines sentences. See, e.g.,
United States v. Brantley, 537 F.3d 347, 349-50 (5th Cir. 2008); United States v.
Lopez-Velasquez, 526 F.3d 804, 806-07 (5th Cir. 2008); United States v.
Mejia-Huerta, 480 F.3d 713, 717-18, 723 (5th Cir. 2007); United States v. Jones,
444 F.3d 430, 433, 441-42 (5th Cir. 2006). Palma has not shown on this record
that the sentence imposed was an abuse of discretion. Smith, 440 F.3d at 707.
      AFFIRMED.




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