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

                                                FILED
                                                                November 6, 2009
                                No. 09-50002
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee

v.

ALBERTO SALVADOR PONCE-PONCE, also known as Javier Dominguez-
Aguilar,

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                        USDC No. 3:08-CR-2210-ALL


Before WIENER, STEWART, and ELROD, Circuit Judges.
PER CURIAM:*
      Alberto Salvador Ponce-Ponce (Ponce) appeals the 60-month sentence
imposed by the district court after he pleaded guilty to illegal reentry pursuant
to 8 U.S.C. § 1326(a). He argues that the sentence is procedurally unreasonable
because it is based, in part, on clearly erroneous facts and that the sentence is
greater than necessary to satisfy the sentencing goals outlined in 18 U.S.C.
§ 3553(a).


      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 09-50002

      In its written Statement of Reasons (SOR), the district court explained the
reasons for imposing the sentence by stating that the “[d]efendant has
committed over twenty burglaries and has not been amenable to received mental
health treatment to deal with his impulsivity.” Ponce argues that this statement
is evidence that the district court was under the mistaken impression that he
had refused to take medication to treat his bipolar disorder and that the district
court considered this clearly erroneous fact when balancing the § 3553(a) factors.
Ponce has not demonstrated that the district court committed procedural error
by relying on clearly erroneous facts. See Gall v. United States, 552 U.S. 38, 128
S. Ct. 586, 597 (2007); United States v. Herrera-Garduno, 519 F.3d 526, 530 (5th
Cir. 2008).
      Nothing in the record indicates that the district court was under the
impression that Ponce had ever refused offered treatment or medication. On the
contrary, the record is clear that the district court imposed a sentence based on
Ponce’s extensive criminal history, which included at least eleven prior
convictions for burglary of a building and one prior conviction for illegal reentry;
the need for rehabilitation; the need to protect the public; and the need to
provide Ponce with appropriate and continued mental health and medical
treatment.
      Ponce argues that although it was proper for the district court to consider
his criminal history and the need for deterrence, the court focused too heavily on
these factors and did not meaningfully consider other mitigating circumstances
such as his mental and physical health issues and his motives for illegally
reentering the United States. Our review of the record reveals that the district
court fully considered all of these issues and addressed Ponce’s concerns by
recommending mental health and medical treatment during imprisonment.
      As we have previously explained, “the sentencing court is free to conclude
that the applicable Guidelines range gives too much or too little weight to one
or more factors, and may adjust the sentence accordingly under § 3553(a).”

                                         2
                                  No. 09-50002

United States v. Lopez-Velasquez, 526 F.3d 804, 807 (5th Cir.), cert. denied, 129
S. Ct. 625 (2008) (internal quotation marks and citation omitted). Therefore, the
district court did not err in considering Ponce’s substantial criminal history or
the need to deter Ponce from future criminal conduct.
      Ponce has not shown that his sentence is substantively unreasonable. It
was not an abuse of discretion for the district court to conclude, considering
Ponce’s criminal history and the § 3553(a) factors of deterrence, respect for the
law, and protection of the public, that a 60-month sentence was necessary to
achieve those sentencing goals. See id. at 806-08. Accordingly, the judgment of
the district court is AFFIRMED.




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