     Case: 11-20305     Document: 00511740380         Page: 1     Date Filed: 01/30/2012




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

                                                                            FILED
                                                                         January 30, 2012
                                     No. 11-20305
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

ISIDORO DURAN MIRELES, also known as Isidoro Lolo Duran, also known as
Isidoro Duran-Mireles, also known as Alejandro Mendoza-Duran,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                       for the Southern District of Texas
                             USDC No. 4:10-CR-809-1


Before SMITH, BARKSDALE, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Isidoro Duran Mireles was sentenced, inter alia, to 42-months’
imprisonment following his guilty-plea conviction for illegal reentry. Duran
Mireles contends the sentence, an upward variance from an advisory Guidelines-
sentencing range of 15 to 21 months, is “greater than necessary” and, thus,
substantively unreasonable. 18 U.S.C. § 3553(a). He maintains the district
court did not give enough weight to: his advisory Guidelines-sentencing range;


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-20305      Document: 00511740380    Page: 2   Date Filed: 01/30/2012

                                  No. 11-20305

his reason for reentry (to be with his pregnant wife); and, the inability of
someone with his limited mental capacity to be deterred by a long prison
sentence.
      Where a sentencing ruling is procedurally sound, the “substantive
reasonableness” of the sentence is reviewed for abuse of discretion. Gall v.
United States, 552 U.S. 38, 51 (2007). District courts have a duty to consider the
§ 3553(a) sentencing factors and to determine correctly the applicable
Guidelines-sentencing range. United States v. Mares, 402 F.3d 511, 518-19 (5th
Cir. 2005).        “In reviewing a non-guidelines sentence for substantive
unreasonableness, the court will consider the totality of the circumstances,
including the extent of any variance from the Guidelines range.” United States
v. Key, 599 F.3d 469, 475 (5th Cir. 2010) (internal quotation marks omitted), cert.
denied, 131 S. Ct. 997 (2011). A non-Guidelines sentence is substantively
unreasonable, and an abuse of discretion, if it: “(1) does not account for a factor
that should have received significant weight, (2) gives significant weight to an
irrelevant or improper factor, or (3) represents a clear error of judgment in
balancing the sentencing factors”. United States v. Smith, 440 F.3d 704, 708
(5th Cir. 2006).
      The district court took Duran Mireles’ above-described contentions into
consideration. But, the court stressed Duran Mireles’ pattern of recidivism,
noting that he had been convicted of illegal reentry in 2002, returned illegally
in 2004, was deported again in 2009, and returned illegally again in 2010. The
court also noted that, after returning in 2010, Duran Mireles was indicted for
possession of 75 pounds of marijuana and possession of a firearm as a felon.
And, the court found that Duran Mireles’ prior 27-month sentence had been
insufficient to deter him from reentering the country illegally.
      It is not possible, let alone required, that district courts give all of the
sentencing factors equal weight. United States v. Hernandez, 633 F.3d 370, 375
(5th Cir.), cert. denied, 131 S. Ct. 3006 (2011). The district court was correct to

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                                No. 11-20305

have used its “judgment to weigh the relative importance of each factor in
relation to [Duran Mireles]” and did not abuse its discretion by weighing some
factors more heavily than others. Id.
      AFFIRMED.




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