     Case: 10-41070     Document: 00511524731         Page: 1     Date Filed: 06/29/2011




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

                                                                            FILED
                                                                           June 29, 2011
                                     No. 10-41070
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

JOSE IGNACIO MONTIEL-DOMINGUEZ,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 5:10-CR-1298-1


Before KING, BARKSDALE, and OWEN, Circuit Judges.
PER CURIAM:*
        Jose Ignacio Montiel-Dominguez challenges the sentence imposed
following his guilty-plea conviction for illegal reentry into the United States.
The district court varied upward from the advisory Guidelines sentencing range
of zero to six months and sentenced Montiel, inter alia, to 24 months’
imprisonment—the statutory maximum. As he did in district court, Montiel
contends his sentence was procedurally and substantively unreasonable.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-41070

      Although, post-Booker, the Guidelines are advisory only, and a sentence
is reviewed for reasonableness under an abuse-of-discretion standard, the
district court must still properly calculate the advisory sentencing range for use
in deciding on the sentence to impose. Gall v. United States, 552 U.S. 38, 51
(2007). In that respect, its application of the Guidelines is reviewed de novo; its
findings of fact, only for clear error. E.g., United States v. Cisneros-Gutierrez,
517 F.3d 751, 764 (5th Cir. 2008); United States v. Villegas, 404 F.3d 355, 359
(5th Cir. 2005).
      In this instance, the advisory sentencing range is not at issue.
Accordingly, we consider whether the district court committed, on another basis,
any significant procedural error. Gall, 552 U.S. at 51. We next “consider the
substantive reasonableness of the sentence imposed under an abuse-of-discretion
standard”. Id.
      In contending his sentence was procedurally unreasonable, Montiel claims
the district court failed to state adequate reasons for a sentence that was both
the statutory maximum and substantially above the advisory sentencing range.
As noted, Montiel challenged the sentence on this basis in district court;
therefore, we review for an abuse of discretion. See, e.g., United States v. Gomez-
Herrera, 523 F.3d 554, 565 n.6 (5th Cir. 2008). The district court gave a lengthy
explanation for the sentence, citing Montiel’s numerous encounters with law
enforcement, particularly his multiple (more than five) reentries into the United
States following deportations, usually within a very short time. (Regarding
those encounters, Montiel has been arrested for, inter alia, attempted murder,
assault, gang assault, robbery, and grand larceny.)        The court also cited:
Montiel’s likelihood of recidivism; and the 18 U.S.C. § 3553(a) sentencing goals
of promoting respect for the law, deterring future criminal conduct, and
protecting the public. Accordingly, Montiel has not shown that the district court
abused its discretion. See, e.g., id. at 564-65 & n.6; United States v. Smith, 440
F.3d 704, 707-08 (5th Cir. 2006).

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                                 No. 10-41070

      In contending his sentence was substantively unreasonable, Montiel
claims the district court gave insufficient weight to the Guidelines, his work
history, his youth, and personal characteristics. The district court acknowledged
Montiel’s youth and his fluency in English, but found that Montiel’s above-
discussed lack of respect for the laws of the United States, and the § 3553(a)
sentencing factors, necessitated a sentence above the advisory sentencing range.
Along that line, there is no indication that the court: failed to “account for a
factor that should have received significant weight”; gave “significant weight to
an irrelevant or improper factor”; or made “a clear error of judgment in
balancing the [18 U.S.C. § 3553(a)] sentencing factors”. See Smith, 440 F.3d at
708 (citation omitted).    Accordingly, Montiel has shown no more than a
disagreement with the district court’s balancing of the § 3553(a) factors.
      AFFIRMED.




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