     Case: 10-30748     Document: 00511549522         Page: 1     Date Filed: 07/25/2011




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

                                                                            FILED
                                                                            July 25, 2011
                                     No. 10-30748
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

CESAR ALEJANDRO LANDEROS-FUENTES,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 2:10-CR-15-1


Before SMITH, BARKSDALE, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Cesar Alejandro Landeros-Fuentes appeals his 60-month sentence,
imposed following his guilty-plea conviction for illegal reentry, in violation of
8 U.S.C. § 1326(a), (b)(2). Due to Landeros’ Sentencing Guidelines criminal-
history category’s underrepresenting the seriousness of his criminal history, the
district court departed upwardly from the presentence investigation report’s
(PSR) recommended Guidelines’ sentencing range of 18 to 24 months’
imprisonment and sentenced him, inter alia, to 60 months’ imprisonment.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-30748

Landeros maintains the district court erred by departing upwardly, claiming the
Guidelines accurately accounted for his prior convictions.
      Although, post-Booker, the sentencing Guidelines are advisory only, and
an ultimate sentence is reviewed for reasonableness under an abuse-of-
discretion standard, the district court must still properly calculate the advisory
Guideline 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 factual findings, 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). Lopez does not claim
procedural error.
      As discussed, “the district court’s decision to depart upwardly and the
extent of that departure” is reviewed for abuse of discretion. United States v.
Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir. 2006) (citation and internal
quotation marks omitted). An upward departure is not an abuse of discretion if
it furthers the 18 U.S.C. § 3553 factors and is justified by the facts of the case.
Id. That our court “might reasonably have concluded that a different sentence
was appropriate is insufficient to justify reversal of the district court”. Gall, 552
U.S. at 51.
      The district court departed upwardly based on Guideline § 4A1.3
(authorizes upward departure if defendant’s criminal-history category
underrepresents seriousness of his criminal history or likelihood of recidivism).
Section 4A1.3(a)(2)(E) states: an upward departure may be based on “prior
similar adult criminal conduct not resulting in a criminal conviction”. U.S.S.G.
§ 4A1.3(a)(2)(E).
      In considering the § 3553 factors, the district court noted: Landeros had
repeatedly reentered and committed crimes in the United States; and, despite
his numerous reentries, he had only one prior conviction for illegal reentry.
Because the district court’s stated reasons for imposing the upward departure

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                                No. 10-30748

furthered the § 3553 factors and were supported by the PSR, the district court
did not abuse its discretion in departing upwardly. See United States v. Lopez-
Velasquez, 526 F.3d 804, 805 (5th Cir. 2008) (upholding 42-month upward
variance from 30-month Guidelines maximum based on prior deportations and
lack of respect for law).
      AFFIRMED.




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