     Case: 10-41082     Document: 00511526862         Page: 1     Date Filed: 06/30/2011




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

                                                                            FILED
                                                                           June 30, 2011
                                     No. 10-41082
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

WILLIAM CRUZ-GARCIA,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 5:10-CR-1261-1


Before WIENER, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
        William Cruz-Garcia pleaded guilty to reentering the United States
illegally after deportation. The district court varied upward from the advisory-
Sentencing Guidelines range of 21 to 27 months and sentenced him to 48
months’ imprisonment. Cruz contends his sentence was procedurally and
substantively unreasonable.
        Although, post-Booker, the Guidelines are advisory only, and a sentence
is reviewed for reasonableness under an abuse-of-discretion standard, the

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-41082

district court must still properly calculate the advisory sentencing range for use
in deciding on the sentence to impose. Gall v. United States, 552 U.S. 38, 50-51
(2007). In that respect, its application of the Guidelines is reviewed de novo; its
findings of fact, only for clear error. E.g., United States v. Cisneros-Gutierrez,
517 F.3d 751, 764 (5th Cir. 2008); United States v. Villegas, 404 F.3d 355, 359
(5th Cir. 2005).
      Accordingly, our court first examines whether the district court committed
any significant procedural error. Gall, 552 U.S. at 51. We next “consider the
substantive reasonableness of the sentence imposed under an abuse-of-discretion
standard”. Id.
      Cruz maintains the district court procedurally erred by selecting a
sentence based on clearly erroneous facts. Although information contained in
the presentence investigation report (PSR) showed Cruz worked, albeit illegally,
as a street vendor and market salesperson, the district court did not clearly err
in finding Cruz had not made any “real contribution” to our economy or society.
The comment was premised on the district court’s observing that Cruz
consistently engaged in criminal conduct while in the United States. The PSR
supports the court’s noting that, except in one instance, each time Cruz was
detained for immigration purposes, it was because he was in custody for another
charge.
      Cruz also maintains the district court procedurally erred by failing to
adequately explain the extent of its upward variance. The court was aware of
Cruz’ age and difficult employment situation in Mexico; however, because of his
extensive criminal history (12 criminal convictions and three arrests) and
insistence on returning to this country despite having already served an 82-
month sentence for illegal re-entry, the court ruled that a non-Guidelines
sentence was necessary to reflect the seriousness of the offense, promote respect
for the law, deter future criminal conduct, protect the public from further crimes,
and provide just punishment for the offense. See United States v. Smith, 440

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                                  No. 10-41082

F.3d 704, 706-08 (5th Cir. 2006). Unlike in United States v. Kirkpatrick, 589
F.3d 414, 415-16 (7th Cir. 2009), cited by Cruz, the court’s reasons were not
conclusional and did not indicate that the sentence was arbitrarily chosen. The
court expressly fashioned a sentence that would be sufficient, in the light of
Cruz’ extensive criminal history in this country.
      Regarding Cruz’ contention that the sentence was substantively
unreasonable, he maintains: a shorter sentence would have been sufficient to
deter him because he was nearly 60 years old at sentencing; the court gave
insufficient weight to the Guidelines and undue weight to his criminal history;
and his having no family in the United States was an improper factor that the
court considered. There is no indication that the court: failed to “account for a
factor that should have received significant weight”; gave “significant weight to
an irrelevant or improper factor”; or made “a clear error of judgment in
balancing the [18 U.S.C. § 3553(a)] sentencing factors”. See Smith, 440 F.3d at
708 (citation omitted).     Accordingly, Cruz has shown no more than a
disagreement with the district court’s balancing of the § 3553(a) factors.
Moreover, the sentence imposed “was reasonable under the totality of th[ose] . . .
factors”. United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008) (citation
and internal quotation marks omitted).
      AFFIRMED.




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