     Case: 15-50003      Document: 00513260259         Page: 1    Date Filed: 11/05/2015




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

                                                                                   FILED
                                    No. 15-50003                            November 5, 2015
                                  Summary Calendar
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

LUIS MENDOZA-LOPEZ, also known as Luis Jamie Mendoza-Lopez,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:14-CR-455-1


Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM: *
       Luis Mendoza-Lopez was convicted of illegal reentry and received an
above-guidelines sentence of 40 months of imprisonment followed by a three-
year term of supervised release. On appeal, he argues that his sentence was
substantively unreasonable because it was greater than necessary to satisfy
the sentencing goals of 18 U.S.C. § 3553(a).




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-50003

      We review sentences for reasonableness, first ensuring that the
sentencing court committed no significant procedural error and then reviewing
the substantive reasonableness of the sentence under a deferential abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 49-51 (2007). However,
as Mendoza-Lopez failed to object to the reasonableness of his sentence below,
review is for plain error. United States v. Peltier, 505 F.3d 389, 391-92 (5th
Cir. 2007). To demonstrate plain error, Mendoza-Lopez must show a forfeited
error that is clear or obvious and that affects his substantial rights. See Puckett
v. United States, 556 U.S. 129, 135 (2009). If he makes such a showing, we
have the discretion to correct the error but only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. See id.
      Where, as here, the district court varies or departs upward from the
guidelines range, we must determine whether the sentence “unreasonably fails
to reflect” the § 3553(a) sentencing factors. United States v. Smith, 440 F.3d
704, 708 (5th Cir. 2006). When imposing sentence, the district court assessed
the facts and provided specific reasons consistent with the § 3553(a) factors to
support its determination that a sentence outside of the guidelines range was
necessary to achieve the goals of sentencing. See Smith, 440 F.3d at 707. The
district court was particularly concerned with Mendoza-Lopez’s “extensive”
criminal history, which included, among others, an uncounted conviction for
possession with intent to distribute methamphetamine and cocaine. We have
affirmed upward variances or departures based on a defendant’s criminal
history and uncounted convictions. See United States v. Brantley, 537 F.3d
347, 350 (5th Cir. 2008).      The district court also took Mendoza-Lopez’s
mitigation argument into account when sentencing him. Nothing required the
district court to give dispositive weight to the mitigating factors that Mendoza-
Lopez advanced. See United States v. Lopez-Velasquez, 526 F.3d 804, 807



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                                 No. 15-50003

(5th Cir. 2008)).    Finally, Mendoza-Lopez’s double counting argument is
foreclosed, see United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009), as
is his substantive reasonableness challenge based on the alleged lack of
seriousness of illegal reentry, see United States v. Juarez-Duarte, 513 F.3d 204,
212 (5th Cir. 2008). Given the above, Mendoza-Lopez has not shown plain
error. See Puckett, 556 U.S. at 135.
      AFFIRMED.




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