     Case: 10-50012     Document: 00511208595          Page: 1    Date Filed: 08/19/2010




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

                                                 FILED
                                                                           August 19, 2010
                                     No. 10-50012
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

HECTOR GONSALEZ-JUAREZ, also known as Hector Juarez-Gonzalez,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 1:09-CR-443-1


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Hector Gonsalez-Juarez appeals his sentence following his guilty plea
conviction for illegal reentry into the United States.              Gonsalez-Juarez was
sentenced to 60 months of imprisonment and three years of supervised release,
which constituted an upward variance from his advisory guidelines range of 24
to 30 months of imprisonment. Gonsalez-Juarez contends that his sentence
should be vacated as substantively unreasonable because it was greater than
necessary to satisfy the requirements 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-50012

      After United States v. Booker, 543 U.S. 220 (2005), a sentence is reviewed
for reasonableness. Gall v. United States, 552 U.S. 38, 46 (2007). This court
first examines whether the district court committed any significant procedural
error. Id. at 51. If the district court’s decision is procedurally sound, this court
will then “consider the substantive reasonableness of the sentence imposed
under an abuse-of-discretion standard.” Id. Because Gonsalez-Juarez does not
contend that the district court committed procedural error, the only issue on
appeal is the substantive reasonableness of his sentence.
      In pronouncing Gonsalez-Juarez’s sentence, the district court noted that
Gonsalez-Juarez had not been deterred by the 33-month sentence imposed for
his prior illegal reentry conviction; Gonsalez-Juarez had been engaged in
criminal conduct constantly from 1983 to 2009; and many of Gonsalez-Juarez’s
past convictions, including twenty theft convictions, were not counted in his
criminal history score. It stated that an upward variance to 60 months of
imprisonment was a reasonable sentence when considering Gonsalez-Juarez’s
history of criminal conduct, the fact that his instant illegal reentry charge arose
following another arrest for theft, and his multiple illegal reentries into the
United States.
      Gonsalez-Juarez argues that the district court should have proceeded
cautiously in determining the extent of his upward variance because U.S.S.G.
§ 2L1.2, the guideline governing his illegal reentry conviction, produces
relatively high guidelines ranges, as its application results in the counting of a
defendant’s criminal history both in increasing the defendant’s offense level and
in calculating his criminal history score. He also contends that the district court
failed to consider that Gonsalez-Juarez returned to the United States based on
a benign motive, namely to respond to his daughters’ request for his help.
Noting that Gonsalez-Juarez’s advisory guidelines range would have been 33
to 41 months of imprisonment had all of his prior convictions been scored, he



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                                  No. 10-50012

contends that a 41-month sentence would have been sufficient under § 3553(a)
and that the district court gave no reason why a 60-month sentence was more
appropriate than a 41-month sentence.
      Gonsalez-Juarez’s lengthy criminal history, which included 24 convictions
that were not counted in his criminal history score, was one of the factors that
the district court was permitted to consider in imposing an upward variance.
See United States v. Herrera-Garduno, 519 F.3d 526, 531 (5th Cir. 2008); United
States v. Smith, 440 F.3d 704, 709 (5th Cir. 2006).            The district court’s
consideration of Gonsalez-Juarez’s criminal history; continuing commission of
theft, including in relation to his instant arrest; multiple illegal reentry offenses;
and commission of the instant offense despite the 33-month sentence imposed
for his prior illegal reentry conviction reflects consideration of Gonsalez-Juarez’s
history and characteristics, the nature and circumstances of his offense, and the
need to promote respect for the law, afford adequate deterrence, and protect the
public from further crimes by Gonsalez-Juarez. See § 3553(a). The district court
listened at sentencing to the statements from Gonsalez-Juarez’s daughter, as
well as Gonsalez-Juarez’s explanation that he reentered the United States in
response to his daughters’ request for his help.
      “[I]n applying abuse-of-discretion review, [this court] ‘must give due
deference to the district court’s decision that the § 3553(a) factors, on a whole,
justify the extent of the variance.’” Herrera-Garduno, 519 F.3d at 530 (quoting
Gall, 552 U.S. at 51). “[T]he sentencing judge is in a superior position to find
facts and judge their import under § 3553(a) with respect to a particular
defendant.” United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir.
2008). “The fact that the appellate 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 provided individualized,
case-specific reasons for imposing the 60-month sentence, and Gonsalez-Juarez



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has not shown that the sentence constituted an abuse of discretion.     See
Herrera-Garduno, 519 F.3d at 530-32.
     AFFIRMED.




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