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

                                                                FILED
                                                                June 20, 2008
                               No. 07-10841
                             Summary Calendar              Charles R. Fulbruge III
                                                                   Clerk

UNITED STATES OF AMERICA

                                          Plaintiff-Appellee

v.

VICTOR MANUEL MENCHACA-VALLES

                                          Defendant-Appellant


                 Appeal from the United States District Court
                      for the Northern District of Texas
                          USDC No. 4:07-CR-8-ALL


Before SMITH, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
      Victor Manuel Menchaca-Valles (Menchaca) challenges his conviction and
144-month sentence for illegally reentering the United States after having been
deported. The district court departed upward from the guidelines sentencing
range by 48 months and required the sentence to run consecutively to the 24-
month sentence imposed upon revocation of Menchaca’s supervised release. The
court noted that the sentence was determined by considering the advisory



      *
      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should not be published and is not precedent except under the limited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.
                                  No. 07-10841

Guidelines and the factors under 18 U.S.C. § 3553(a).           The district court
explained the reasons for its departure as follows:
      Only an upward departure sentence of 144 months, which is 48
      months above the top of the guideline range but 96 months or eight
      years below the statutory maximum, will achieve the Court’s
      sentencing objectives of punishment, deterrence, and protection of
      the public.
             To arrive at a sentence of 144 months, the Court considered
      the fact that the defendant has committed his crimes for which
      there are 13 consecutive convictions over a relatively short period of
      25 years, which means an additional crime every other year, which
      indicates him to be a severe recidivist.
             Nine of those 13 convictions are related to immigration
      violations indicating that he has no respect for the immigration laws
      of the United States, that he has been undeterred by the relatively
      light to moderate sentences he has received, and that the only way
      to prevent his continued violation of the law of the United States as
      to immigration is to incarcerate him.
             After considering that, I move incrementally down the
      guidelines offense level chart until arriving at an offense level of 28,
      which yields in conjunction with the criminal history category of VI,
      a guideline range of 140 to 175 months. This offense level is
      required to place this defendant in a category necessary to equate
      him and his criminal behavior with scofflaws of his caliber.

      Menchaca asserts that the 48-month departure is unreasonable. He
asserts that the factors relied upon by the district court were accounted for in
the calculation of the guidelines sentence. He further asserts that most of his
immigration offenses occurred more than 20 years ago and that the majority of
his convictions occurred while he was in his late teens and early 20s. He asserts
that his risk of recidivism has declined because he is now 45 with children. He
also asserts that a 40% departure upward is unreasonable because the
maximum guidelines sentence is greater than the guidelines sentences for other
“more serious crimes.” In addition, he contends that the departure was not
necessary to protect the public because his offenses were victimless. Finally, he
asserts that the guidelines maximum, along with the two-year sentence for


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revocation of his supervised release, is sufficient to deter any future criminal
conduct.
      We review the sentencing decisions of the district court for reasonableness.
Gall v. United States, __ U.S. __, 128 S. Ct. 586, 594 (2007). Because Menchaca
did not object to the departure in the district court, we review the issue for plain
error. United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007), petition for
cert. filed (Jan. 22, 2008) (No. 07-8978); United States v. Lopez-Velasquez, ___
F.3d ___, Nos. 07-10151 and 07-10321, 2008 WL 1874577, at *1 (5th Cir. Apr. 29,
2008). We may reverse the sentence only if (1) there is error (the sentence was
unreasonable); (2) that is plain; and (3) it affects substantial rights. Peltier, 505
F.3d at 392. “Moreover, [FED. R. CRIM. P. 52(b)] leaves the decision to correct the
forfeited error within the sound discretion of the court of appeals, and the court
should not exercise that discretion unless the error seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.” Id. (internal
quotation marks and citation omitted).
      Menchaca fails to establish that the district court imposed an
unreasonable sentence. First, the fact that part of his criminal history was
accounted for in the calculation of the guidelines range does not prevent the
district court from relying on the criminal history to impose a greater sentence.
See Lopez-Velasquez, 2008 WL 1874577, at *2. Next, Menchaca’s age and
parenthood have not decreased his propensity for criminal activity, as evidenced
by his recent convictions for illegal reentry and driving while intoxicated. His
argument that the departure is not needed to protect the public is unconvincing
because his 13 arrests, 6 deportations, 10 federal convictions, and 3 state
convictions have cost the public greatly in terms of immigration and judicial
resources. Likewise, his assertion that the guidelines maximum would be
sufficient to deter him from committing further crimes is unpersuasive in light
of his criminal record. His history of flouting the laws of the United States
supports a sentence substantially higher than the guidelines range. See id.

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                                  No. 07-10841

      Finally, the fact that the Guidelines punish illegal reentry more harshly
than other “more serious” crimes does not establish that the upward departure
is unreasonable.    The district court was required to calculate the correct
guidelines range, and it was free to express disagreement with the severity of
the recommended sentence. See Kimbrough v. United States, __ U.S. __, 128 S.
Ct. 558, 574-75 (2007). It was also free to impose a more severe sentence based
upon Menchaca’s criminal history. See Lopez-Velasquez, 2008 WL 1874577, at
*2. Menchaca has not established error, much less plain error, on the part of the
district court in imposing the 48-month departure.
      Next, in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Menchaca
challenges the constitutionality of 8 U.S.C. § 1326(b)’s treatment of prior felony
and aggravated felony convictions as sentencing factors rather than elements of
the offense that must be found by a jury. This argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). United States v.
Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), cert. denied, 128 S. Ct. 872
(2008).
      AFFIRMED.




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