     Case: 11-50162     Document: 00511638720         Page: 1     Date Filed: 10/20/2011




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

                                                                            FILED
                                                                         October 20, 2011
                                     No. 11-50162
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JOSE ABELARDO AMAYA-PORTILLO,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:10-CR-1002-1


Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Jose Abelardo Amaya-Portillo (Amaya) appeals his sentence following his
guilty plea conviction for illegal reentry into the United States. Amaya was
sentenced to 24 months of imprisonment, which constituted an upward variance
from his advisory guidelines range of 8 to 14 months of imprisonment, and three
years of supervised release. He contends that his sentence is greater than
necessary to satisfy the requirements of 18 U.S.C. § 3553(a).



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-50162    Document: 00511638720      Page: 2    Date Filed: 10/20/2011

                                  No. 11-50162

      The district court found that the Guidelines “do not adequately account for
all of the criminal convictions that in this defendant’s background.” The court
noted six adult convictions that did not score any criminal history points, and
the court found that the history and characteristics of the defendant, the need
to promote respect for the law, and the need to protect the public were not
adequately served by the advisory guideline range. In overruling Amaya’s
objection to the sentence, the court also noted Amaya’s prior 18-month sentence
for a prior illegal reentry conviction and indicated that a higher sentence was
necessary in order to afford adequate deterrence to criminal conduct. Thus, the
district court made an individual assessment and concluded that the advisory
guidelines range gave insufficient weight to some of the sentencing factors. See
United States v. Williams, 517 F.3d 801, 809 (5th Cir. 2008).             Amaya’s
above-guidelines sentence was reasonable in light of “the totality of the
circumstances,” and 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.” Gall
v. United States, 552 U.S. 38, 51 (2007).
      Amaya characterizes his criminal history as relatively minor, but his
criminal history includes numerous convictions and arrests for serious offenses
and supports the district court’s upward variance.          See United States v.
Herrera-Garduno, 519 F.3d 526, 531 (5th Cir. 2008). He complains that § 2L1.2
increases a defendant’s offense level based on criminal history, which Chapter 4
of the Guidelines also take into account. Only one of Amaya’s prior sentences
scored criminal history points under Chapter 4. In any case, we have rejected
the contention that the use of a prior conviction both to increase the offense level
and to calculate the criminal history category is impermissible. United States
v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009). We have also rejected the
argument that a sentence is excessive because illegal reentry is a trespassing
crime. See United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006).
      AFFIRMED.

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