     Case: 10-10679     Document: 00511521728         Page: 1     Date Filed: 06/27/2011




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

                                                                            FILED
                                                                           June 27, 2011
                                     No. 10-10679
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ADOLFO DIAZ-CORRALES,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:10-CR-9-1


Before JOLLY, GARZA and STEWART, Circuit Judges.
PER CURIAM:*
        Adolfo Diaz-Corrales appeals the 120-month sentence imposed following
her guilty plea to illegal reentry after deportation. As Diaz-Corrales does not
challenge the procedural correctness of his sentence, we will proceed to an
examination of its substantive reasonableness. See United States v. Brantley,
537 F.3d 347, 349 (5th Cir. 2008). Because he objected to the reasonableness of
his sentence, we will apply the abuse of discretion standard. See United States
v. Peltier, 505 F.3d 389, 391 (5th Cir. 2007).

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 10-10679   Document: 00511521728      Page: 2   Date Filed: 06/27/2011

                                  No. 10-10679

      Although the district court at times used the term “departure” at the
sentencing hearing, the court’s comments, viewed as a whole, and its written
Statement of Reasons, clearly reflect that it was imposing a sentence which
represented a variance under 18 U.S.C. § 3553(a) rather than an upward
departure. Where the district court has imposed a sentence that varies from the
guidelines range, reasonableness review requires this court to evaluate whether
the sentence “unreasonably fails to reflect the statutory sentencing factors” set
forth at § 3553(a). United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006). A
sentence outside the Guidelines is unreasonable if it “(1) does not account for a
factor that should have received significant weight, (2) gives significant weight
to an irrelevant or improper factor, or (3) represents a clear error of judgment
in balancing the sentencing factors.” Id.
      The district court determined that a variance was justified by Diaz-
Corrales’s uncounted criminal convictions and his continued illegal activities.
The court also specifically cited several of the § 3553(a) factors which it
considered relevant. The district court thus made an “individualized assessment
based on the facts presented” and concluded that the advisory guidelines range
gave insufficient weight to some of the sentencing factors. See United States v.
Williams, 517 F.3d 801, 809 (5th Cir. 2008). Because the court cited fact-specific
reasons for imposing a non-guideline sentence and its reasons adequately
reflected consideration of the § 3553(a) factors, the sentence was reasonable and
will not be disturbed. See Brantley, 537 F.3d at 349-50.
      AFFIRMED.




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