     Case: 17-40404      Document: 00514185189         Page: 1    Date Filed: 10/05/2017




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

                                      No. 17-40404
                                                                                  Fifth Circuit

                                                                                FILED
                                                                          October 5, 2017

UNITED STATES OF AMERICA,                                                  Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellee,

v.

JORGE MERCADO-SOTO,

              Defendant - Appellant.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 1:16-CR-1133-1


Before DAVIS, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant        Jorge    Mercado-Soto       appeals     the       18-month
sentence imposed by the district court following his guilty plea conviction for
illegal reentry following deportation, in violation of 8 U.S.C. § 1326(a). He
contends that the district court’s upward variance from the advisory
Guidelines imprisonment range of zero to six months was procedurally and
substantively unreasonable. For the reasons set forth below, we affirm.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-40404
      This Court reviews the district court’s sentencing decisions for
reasonableness using the bifurcated review process set forth by the Supreme
Court in Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445
(2007).   United States v. Nguyen, 854 F.3d 276, 280 (5th Cir. 2017).
Specifically, we first examine whether the district court committed any
significant procedural error in determining the defendant’s sentence. Id. If
there is no procedural error or the error is harmless, we may proceed to the
second step, which requires our review of the substantive reasonableness of
the sentence for an abuse of discretion. Id. at 280, 283.
      Emphasizing that the 18-month sentence imposed is triple the high end
of the Guidelines range, Mercado-Soto asserts that the district court committed
procedural error by failing to explain adequately or justify its sentence. When
determining the appropriate sentence for a defendant, the district court is
required to “adequately explain the chosen sentence to allow for meaningful
appellate review and to promote the perception of fair sentencing.” Gall, 552
U.S. at 50, 128 S.Ct. at 597 (citation omitted). Furthermore, when imposing
an upward variance, the district court is required by the statute governing the
imposition of sentences, 18 U.S.C. § 3553, to state its reasons for the variance
with specificity. 18 U.S.C. § 3553(c)(2).
      At the sentencing hearing, the district court expressly informed
Mercado-Soto that the 18-month sentence imposed was “a non-guideline
sentence based on the nature and circumstances of the offense and the history
and characteristics of the Defendant.”      Consideration of these factors is
specifically required by 18 U.S.C. § 3553(a)(1) when imposing a sentence.
Moreover, in response to defense counsel’s objection to the upward variance,
the district court further explained that the sentence imposed was based on
Mercado-Soto’s “immigration history, his numerous contacts with immigration
law and the fact that [the] last time he brought 112 kilos of marijuana with
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                                     No. 17-40404
him when he violated our immigration laws.”                 The record reflects that
Mercado-Soto’s immigration history includes three illegal entries and
voluntary removals in 1996, three illegal entries and voluntary removals in
2000, and three illegal entries with judicial removals from June 2013 to July
2016. Less than one month after his last deportation, Mercado-Soto again
illegally entered the United States in August 2016. At that time, he was
involved with five other individuals in transporting approximately 112
kilograms of marijuana. In view of the foregoing, the district court adequately
explained and justified its sentence, and no procedural error has been shown.
        Mercado-Soto next argues that the sentence imposed was substantively
unreasonable. He asserts that the district court gave insufficient weight to the
Guidelines’ recommendation of zero to six months imprisonment, gave too
much weight to his immigration and criminal history, and committed a clear
error of judgment in balancing the sentencing factors set forth in 18 U.S.C.
§ 3553(a). We review the substantive reasonableness of the district court’s
sentence for an abuse of discretion. Nguyen, 854 F.3d at 283. As described
above, the district court imposed an upward variance based on the numerous
times Mercado-Soto illegally entered the United States and the fact that he
was involved in transporting a large amount of marijuana during the last time
he entered the country illegally.          We cannot say that the district court’s
considerations are insufficient to justify the upward variance imposed. Given
this    Court’s   highly     deferential   standard    of   review   for   substantive
reasonableness, id. at 284, we hold that the district court did not abuse its
discretion in imposing the upward variance.
        Accordingly, Defendant-Appellant Jorge Mercado-Soto’s sentence is
AFFIRMED.




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