     Case: 10-40583 Document: 00511492260 Page: 1 Date Filed: 05/31/2011




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

                                                 FILED
                                                                            May 31, 2011
                                     No. 10-40583
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

IGNACIO DAMIAN OCHOA,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                             USDC No. 5:09-CR-1125-1


Before JONES, Chief Judge and JOLLY and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Ignacio Damian-Ochoa (Damian) appeals the non-Guidelines sentence
imposed following his guilty-plea conviction for illegal reentry in violation of
18 U.S.C. § 1326.        Damian argues that his sentence is procedurally and
substantively unreasonable because the district court did not consider whether
an upward departure under the Guidelines was appropriate before imposing an
upward variance, the district court did not adequately explain the extent of 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
    Case: 10-40583 Document: 00511492260 Page: 2 Date Filed: 05/31/2011

                                  No. 10-40583

upward variance, and the sentence was greater than necessary to achieve the
goals of sentencing.
      Sentences, whether inside or outside the advisory guidelines range, are
reviewed under an abuse of discretion standard for procedural error and
substantive reasonableness. Gall v. United States, 552 U.S. 38, 51 (2007).
Damian’s argument that the district court should have first considered whether
an upward departure under the Guidelines was appropriate before imposing an
upward variance is unavailing. A district court is not required to “consult or
comply” with § 4A1.3 of the Guidelines prior to the consideration or imposition
of a non-guidelines sentence. United States v. Mejia-Huerta, 480 F.3d 713, 723
& n.43 (5th Cir. 2007).
      As for Damian’s contention that the district court failed to explain the
extent of the imposed variance, the record belies this assertion. The district
court did state reasons for its upward variance – the sentencing goal of
deterrence; the nature, circumstances or severity of the offense; the history and
characteristics of the defendant; and the need to promote respect for the law.
The district court specifically voiced concern about the 32 times Damian illegally
reentered the United States.
      Lastly, Damian’s non-Guidelines sentence of 32 months of imprisonment,
a 16-month variance from the top of his 10 to 16 month advisory guidelines
sentencing range, is substantially reasonable. Damian’s sentence is supported
by numerous § 3553(a) factors and is less than the statutorily authorized
sentence of 10 years of imprisonment set forth in the statute of conviction. See
United States v. Williams, 517 F.3d 801, 812-13 (5th Cir. 2008). Also, we have
upheld variances greater than this variance. See United States v. Brantley,
537 F.3d 347, 348-50 (5th Cir. 2008); United States v. Jones, 444 F.3d 430, 433,
441-42 (5th Cir. 2006); United States v. Smith, 417 F.3d 483, 492-93 & n.40 (5th
Cir. 2005). Accordingly, in light of the record and the deference that this court



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                                No. 10-40583

affords to the district court’s findings, the district court did not abuse its
discretion when it imposed a non-Guidelines sentence.
      The judgment of the district court is AFFIRMED.




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