     Case: 12-11125       Document: 00512380577         Page: 1     Date Filed: 09/20/2013




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

                                                                            FILED
                                                                        September 20, 2013
                                     No. 12-11125
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JUAN CARLOS LARA ARGUELLES,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:12-CR-102-1


Before SMITH, BENAVIDES, and OWEN, Circuit Judges.
PER CURIAM:*
       Juan Carlos Lara Arguelles (Lara) appeals his above-guideline sentence
of 48 months of imprisonment imposed following his guilty plea conviction to
being found unlawfully in the United States following deportation. Lara argues
that the district court committed procedural error in relying on the finding in the
presentence report that an upward variance might be warranted based on the
citizenship or national origin and/or residency of his family members.
Contending that consideration of those factors was prohibited by the Sentencing

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-11125

Guidelines, he asserts that the district court was required to explicitly recognize
that Guideline policy and to provide reasons for its disagreement from it.
         Because this issue was raised in the district court, review is de novo. See
United States v. Mendoza, 587 F.3d 682, 688 (5th Cir. 2009). In advising the
district court of factors that might warrant an upward departure, the probation
officer discussed several reasons why she believed that Lara would continue to
return illegally to the United States and commit crimes. The reference to his
son’s citizenship/national origin and the residency of his family members was
merely an additional basis for that determination. Any consideration given by
the district court to the recidivism factor was not a deviation from a Guideline
policy and did not result in the district court giving significant weight to an
improper factor. See United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006).
The district court did not commit a procedural error by considering an improper
factor related to citizenship or family ties at sentencing.
         Lara asserts that the district court deviated from guideline policies in
considering his administrative removals and voluntary departures and did not
provide any reasons for this deviation. His reliance on the commentary to
U.S.S.G § 4A1.3 as providing a policy against consideration of repeated
administrative removals from the United States is misplaced because the court
has determined that the guideline applies only to a departure that is based on
an underrepresented criminal history and that it does not apply to a variance.
United States v. Mejia-Huerta, 480 F.3d 713, 723 (5th Cir. 2007). Further, a
review of comment two to that Guideline shows that it merely recommends some
factors that might warrant an upward departure, but it does not proscribe the
consideration of prior administrative removals. See § 4A1.3, comment. (n.2(A)(i)-
(iv)).
         Because Lara did not argue below that the district court ignored policy
statements arising out of certain amendments to the Guidelines, review of this
issue is for plain error. See United States v. Mondragon-Santiago, 564 F.3d 357,

                                          2
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                                 No. 12-11125

361 (5th Cir. 2009). A review of the amended Guidelines does not reflect a policy
against consideration at sentencing of repetitive administrative removals of the
defendant. Thus, Lara has not shown that the district court plainly erred in not
explaining its differences with the policies allegedly contained in the
amendments. See Puckett v. United States, 556 U.S. 129, 135 (2009).
      No authority has been provided to support Lara’s argument that the
district court deviated from policy in considering his multiple prior
administrative removals.     Thus, he failed to show that the district court
committed procedural error on that basis. See United States v. Simmons, 568
F.3d 564, 570 (5th Cir. 2009). The sentence is AFFIRMED.




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