     Case: 10-51038     Document: 00511574358         Page: 1     Date Filed: 08/17/2011




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

                                                                            FILED
                                                                          August 17, 2011
                                     No. 10-51038
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JESUS MANUEL PAYAN-GLORIA, also known as Luis Jesus Contreras, also
known as Antonio Payan, also known as Jesus Manuel Payan-Glorida,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:09-CR-1939-1


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
        Jesus Manuel Payan-Gloria pleaded guilty to one count of attempted
illegal reentry into the United States, a violation of 8 U.S.C. § 1326, and one
count of false personation in immigration matters, a violation of 18 U.S.C.
§ 1546. He was sentenced originally to concurrent terms of 41 months of
imprisonment and three years of nonreporting supervised release. On appeal,
we granted Payan-Gloria’s unopposed motion to vacate his sentence and to


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-51038   Document: 00511574358      Page: 2   Date Filed: 08/17/2011

                                  No. 10-51038

remand for resentencing in light of Carachuri-Rosendo v. Holder, 130 S. Ct. 2577
(2010). On resentencing, the district court varied upward from Payan-Gloria’s
guidelines range of 30 to 37 months of imprisonment and imposed the same
sentences Payan-Gloria received originally.
      Payan-Gloria now appeals the sentences imposed on remand, contending
that they were greater than necessary to satisfy the requirements of 18 U.S.C.
§ 3553(a). 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). We
first examine whether the district court committed any significant procedural
error. Id. at 51. If the district court’s decision is procedurally sound, we will
then “consider the substantive reasonableness of the sentence imposed under an
abuse-of-discretion standard.” Id. Because Payan-Gloria does not contend that
the district court committed procedural error, the only issue on appeal is the
substantive reasonableness of his sentences.
      In imposing the sentences, the district court noted Payan-Gloria’s gang
membership and extensive criminal history, which included four prior
convictions for illegal reentry into the United States, and indicated that there
was a need to deter Payan-Gloria from desiring to return to the United States.
Payan-Gloria concedes that the factors considered by the district court were
proper but contends that a within-guidelines sentence would have been
sufficient, but not greater than necessary, to account for those factors. He
contends that immigration offenses generally result in relatively high guidelines
ranges for relatively minor conduct; his guidelines imprisonment range was high
relative to the seriousness of his offenses; and his guidelines range did not take
into account the fact that his benign motivation for attempting to return to the
United States was concern for his elderly mother.
      “[I]n applying abuse-of-discretion review, we ‘must give due deference to
the district court’s decision that the § 3553(a) factors, on a whole, justify the
extent of the variance.’” United States v. Herrera-Garduno, 519 F.3d 526, 530

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                                No. 10-51038

(5th Cir. 2008) (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 district court provided individualized,
case-specific reasons for imposing the 41-month sentences, and Payan-Gloria has
not shown that the sentences constituted an abuse of discretion.            See
Herrera-Garduno, 519 F.3d at 530-32.
      AFFIRMED.




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