     Case: 10-11170     Document: 00511600477         Page: 1     Date Filed: 09/13/2011




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

                                                                            FILED
                                                                        September 13, 2011
                                     No. 10-11170
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

ALBERTO CERVANTES-MARTINEZ,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:10-CR-106-1


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        Alberto Cervantes-Martinez appeals from the 30-month sentence imposed
by the district court following his conviction of one count of illegal reentry. The
district court upwardly departed from the guidelines range of 15-21 months of
imprisonment pursuant to U.S.S.G. § 4A1.3. Cervantes asserts that his prior
criminal activity places him within the “heartland” of illegal reentry cases and
that, because many of his prior convictions are temporally remote, his criminal
history category does not substantially underrepresent the seriousness of his

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-11170    Document: 00511600477      Page: 2   Date Filed: 09/13/2011

                                  No. 10-11170

criminal history. He also contends that he no longer has a motivation to return
to this country.
      In the context of a Guidelines departure pursuant to § 4A1.3,
reasonableness review requires this court to evaluate both “the district court’s
decision to depart upwardly and the extent of that departure for abuse of
discretion.” United States v. Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir. 2006)
(quotation marks and citation omitted). We need not resolve the parties’ dispute
regarding whether Cervantes’ sentence is entitled to a presumption of
reasonableness, see United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006),
because even without the benefit of such a presumption, the sentence imposed
by the district court does not constitute an abuse of discretion given Cervantes’
extensive criminal history and record of recidivism. See 18 U.S.C. § 3553(a)
(instructing the district court to consider “the history and characteristics of the
defendant” as well as, inter alia, the need for the sentence imposed “to promote
respect for the law,” “to afford adequate deterrence to criminal conduct,” and “to
protect the public from further crimes of the defendant”); Zuniga-Peralta, 442
F.3d at 347-48 (affirming a departure based on the district court’s finding that
the defendant was a recidivist whose criminal-history score did not reflect his
lengthy criminal history).
      Further, the extent of the departure is less than other sentences that we
have affirmed. See, e.g.,United States v. Jones, 444 F.3d 430, 442-43 (5th Cir.
2006) (upholding an upward departure from range of 46-57 months of
imprisonment to a sentence of 120 months); Zuniga-Peralta, 442 F.3d at 346-48
(upholding upward departure from range of 27-33 months of imprisonment to a
sentence of 60 months). Even were this court to conclude that a different
sentence would be better, that “is insufficient to justify reversal of the district
court.” Gall v. United States, 552 U.S. 38, 51 (2007).
      AFFIRMED.



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