     Case: 09-20704 Document: 00511281502 Page: 1 Date Filed: 11/02/2010




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

                                                 FILED
                                                                          November 2, 2010
                                     No. 09-20704
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

GERMAN AGUILAR SEVILLA, also known as German S. Aguillar, also known
as Hancy Sevilla, also known as Herman Sevilla Aguilar, also known as German
Sevilla Aguillar, also known as German Aguilar-Sevilla, also known as German
S. Aguilar, also known as Carlos Munoz, also known as Jose Americar, also
known as German Aguilar, also known as German Sevilla Aguilar,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:09-CR-163-1


Before HIGGINBOTHAM, DeMOSS, and DENNIS, Circuit Judges.
PER CURIAM:*
       German Aguilar Sevilla pleaded guilty of illegal reentry following
deportation and he has appealed his sentence, which involved an upward
departure from the advisory guidelines sentencing range. Sevilla argues that
“the district court committed a procedural error in equating the factors applied


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-20704

in the sentencing guidelines with the sentencing factors set forth in 18 U.S.C.
§ 3553(a).” Sevilla contends that the district court considered the Guidelines
only in determining the sentence, and that it failed to consider the other
§ 3553(a) factors. He contends, “[b]y finding that the sentencing guidelines
sentencing factor encompassed all seven of the statutory sentencing factors
under § 3553(a), when the sentencing guidelines are but one of the seven
§ 3553(a) factors, the district court presumed that the Guidelines range was a
reasonable sentence under § 3553(a).” Because Sevilla’s arguments were not
raised below in such a manner so that the district court could correct itself, our
review is for plain error. See United States v. Mondragon-Santiago, 564 F.3d
357, 361 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009).
      Sevilla argues correctly that the district court may not apply a
presumption of correctness to the advisory guidelines sentence. See Nelson v.
United States, 129 S. Ct. 890, 892 (2009). “Instead, the sentencing court must
first calculate the Guidelines range, and then consider what sentence is
appropriate for the individual defendant in light of the statutory sentencing
factors.” Id. at 891-92; see also Gall v. United States, 552 U.S. 38, 49-50 (2007).
      In stating that the guidelines “adequately address[ed] all statutory
sentencing factors,” the district court did not expressly apply a presumption of
correctness to the guidelines sentence, and there is no basis for concluding that
it did so. The record reflects that the district court departed upward from the
advisory guidelines range after expressly giving consideration to Sevilla’s
criminal history and individual characteristics. See § 3553(a)(1). The court
noted specifically that Sevilla had many more criminal history points than were
necessary to attain Criminal History Category VI, that several of Sevilla’s prior
convictions had involved violent offenses, and that there were several unscored
offenses. The court noted that Sevilla had been deported numerous times. Thus,
the district court implicitly considered the seriousness of the offense and the
need for the sentence to promote respect for the law, to provide just punishment

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                                 No. 09-20704

for the offense, to deter additional criminal conduct, and to protect the public
from further crimes.    See § 3553(a)(2).   In determining the extent of its
departure, the district court properly considered incremental steps along the
sentencing table. See U.S.S.G. § 4A1.3(a)(4)(B). Sevilla has not shown that the
district court committed any error, plain or otherwise, in determining the
sentence. See Mondragon-Santiago, 564 F.3d at 361. Accordingly, the judgment
of the district court is AFFIRMED.




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