     Case: 11-50215     Document: 00511631025         Page: 1     Date Filed: 10/13/2011




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

                                                                            FILED
                                                                         October 13, 2011
                                     No. 11-50215
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

WILSON ALEXANDER AGUILAR,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:10-CR-714-1


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        Wilson Alexander Aguilar appeals the 12-month sentence imposed
following his guilty plea conviction for being found unlawfully in the United
States following deportation, in violation of 8 U.S.C. 1326(a). Aguilar argues
that his sentence, an upward variance from the advisory sentencing guidelines
range (one to seven months), was substantively unreasonable because it was
greater than necessary to achieve the sentencing objectives 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-50215    Document: 00511631025      Page: 2   Date Filed: 10/13/2011

                                  No. 11-50215

      Aguilar has failed to demonstrate that the sentence is substantively
unreasonable. See Gall v. United States, 552 U.S. 38, 51 (2007). The district
court heard the mitigating arguments of counsel and Aguilar’s statement
concerning his motive for returning to the United States. However, the district
court found that the mitigating factors were outweighed by Aguilar’s two prior
deportations, his use of an alias and false birth date, and his use of a fraudulent
social security number. The district court stated that it had considered the
§ 3553(a) factors, including the goals of deterrence and the protection of the
public. Id. at 80.
      “[T]he sentencing court is free to conclude that the applicable Guidelines
range gives too much or too little weight to one or more factors, and may adjust
the sentence accordingly under § 3553(a).” United States v. Lopez-Velasquez, 526
F.3d 804, 807 (5th Cir. 2008) (internal quotation and citation omitted). Aguilar’s
disagreement with the extent of the upward variance and with the district
court’s weighing of the § 3553(a) factors is insufficient to demonstrate that the
district court abused its discretion in imposing his sentence or that his sentence
is substantively unreasonable. Id.
      Further, the 12-month sentence was only five months above the top of the
sentencing guidelines range. This court has upheld variances considerably
greater than the increase to Aguilar’s sentence, 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), and it has also rejected arguments that a sentence was
substantively unreasonable because it constituted “some multiple of the upper
end of the guidelines range.” United States v. Key, 599 F.3d 469, 476 n.1 (5th
Cir. 2010).
      Aguilar has failed to show that the district court abused its discretion in
imposing the 12-month sentence. The sentence is AFFIRMED.




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