     Case: 12-10004     Document: 00511965797         Page: 1     Date Filed: 08/22/2012




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

                                                                            FILED
                                                                          August 22, 2012
                                     No. 12-10004
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

ANTONIO URIBE-QUINTERO,

                                                  Defendant - Appellant


                   Appeals from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:11-CR-123-1


Before BARKSDALE, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM:*
        Antonio Uribe-Quintero challenges his sentence of 100-months’
imprisonment, imposed following his guilty-plea conviction for unlawful presence
in the United States following deportation, in violation of 8 U.S.C. § 1326(a).
Uribe contends his sentence, an upward variance from the advisory Sentencing
Guidelines range of 70 to 87 months, was substantively unreasonable.
        Challenges to the reasonableness of sentences are reviewed for abuse of
discretion. Gall v. United States, 552 U.S. 38, 51 (2007). The district court, in

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-10004   Document: 00511965797        Page: 2   Date Filed: 08/22/2012

                                  No. 12-10004

varying upward:     stated that it had considered the 18 U.S.C. § 3553(a)
sentencing factors, including the goals of deterrence and the protection of the
public; noted Uribe’s prior aggravated-assault conviction, as well as his habitual
disregard for immigration laws; and observed that Uribe had been undeterred
by previous periods of incarceration.
      “[T]he sentencing court is free to conclude that the applicable Guidelines
range gives too much or too little weight to one or more factors, and may adjust
the sentence accordingly under § 3553(a)”. United States v. Lopez-Velasquez, 526
F.3d 804, 807 (5th Cir. 2008) (internal quotation marks omitted); Gall, 552 U.S.
at 51 (“[D]ue deference [must be given] to the district court’s decision that the
§ 3553(a) factors, on a whole, justify the extent of the variance”.). Uribe’s
disagreement with both the extent of the upward variance and the district
court’s weighing of the § 3553(a) factors is insufficient to show the court abused
its discretion. Lopez-Velasquez, 526 F.3d at 807. Along that line, the sentence
was 13 months above the top of the advisory Guidelines sentencing range. Our
court has upheld variances considerably greater than this increase to Uribe’s
sentence. E.g., United States v. Brantley, 537 F.3d 347, 348-50 (5th Cir. 2008);
United States v. Smith, 417 F.3d 483, 492-93 (5th Cir. 2005).
      Finally, to the extent Uribe challenges his sentence on the basis that the
illegal-reentry Sentencing Guideline counted his aggravated-assault conviction
both to increase the offense level and to calculate his criminal history, that
contention lacks merit. United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.
2009) (rejecting “double counting” assertion).
      AFFIRMED.




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