USA v. Jose Vargas-Velasquez

Filing

Case: 09-10626

Document: 00511200871

Page: 1

Date Filed: 08/11/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-10626 S u m m a r y Calendar August 11, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. J O S E DANIEL VARGAS-VELASQUEZ, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Northern District of Texas U S D C No. 1:08-CR-76-1

B e fo r e WIENER, PRADO, and OWEN, Circuit Judges. P E R CURIAM:* D e fe n d a n t -A p p e lla n t Jose Daniel Vargas-Velasquez (Vargas) appeals the 7 5 -m on th sentence imposed following his guilty plea conviction for illegal reentry a ft e r deportation. The district court imposed an upward variance from the g u id e lin e s range of 21 to 27 months based, inter alia, on Vargas's history and c h a r a c t e r is t ic s , which included numerous convictions that were too old to be c o u n t e d when computing his criminal history score. Vargas presents two

a r g u m e n t s : (1) that the district court's reasons for his sentence were inadequate
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-10626

Document: 00511200871 Page: 2 No. 09-10626

Date Filed: 08/11/2010

b e c a u s e the court failed to explain why it disagreed with the Sentencing C o m m is s io n 's decision not to include aged convictions when calculating a d e fe n d a n t 's criminal history score; and (2) that his sentence was unreasonable b e c a u s e the district court failed to consider a factor that should have received s ig n ific a n t weight, his ability to earn a steady income. V a r g a s 's first claim, that the district court procedurally erred by not a d e q u a t e ly explaining its reasons for disagreeing with the Commission, is u n p e r s u a s iv e . The district court's reasons for the upward variance were facts p e c ific and consistent with the 18 U.S.C. § 3553(a) sentencing factors. See U n ite d States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006). In particular, the d is t r ic t court carefully weighed the § 3553(a) factors and articulated sufficiently c o m p e llin g reasons to justify the 75-month sentence. The court noted his four p r io r DWI convictions; his six prior convictions that were not used to calculate h is criminal history category; his prior convictions for resisting arrest, including a s s a u ltin g a peace officer; his prior drug conviction; his evident lack of respect fo r the law; the need for deterrence; and the need to protect the public. The d is t r ic t court's reasons were sufficient to justify the variance and the extent and t o satisfy the requirement that the court give reasons to permit meaningful a p p e l l a t e review. See Smith, 440 F.3d at 707. Accordingly, Vargas has not s h o w n plain error in connection with the district court's reasons. See United S ta te s v. Peltier, 505 F.3d 389, 391-94 (5th Cir. 2007). Vargas's second claim, that his sentence is unreasonable, is likewise u n a v a ilin g . The district court made the required individualized assessment and w a s free to conclude, as it did, that in Vargas' s case the guidelines range gave in s u ffic ie n t weight to some of the sentencing factors, including his history and c h a r a c t e r is t ic s , the seriousness of the offense, the need to provide just p u n is h m e n t , and the need for deterrence. See United States v. Williams, 517 F .3 d 801, 809 (5th Cir. 2008); § 3553(a). Furthermore, although Vargas contends t h a t the court did not consider a factor that should have been afforded 2

Case: 09-10626

Document: 00511200871 Page: 3 No. 09-10626

Date Filed: 08/11/2010

s ig n ific a n t weight, that is, his ability to earn a steady income, he presents no c o n v in c in g argument that this factor is substantial enough that it should have b e e n weighted more heavily. See Smith, 440 F.3d at 708. Accordingly, Vargas h a s not established that his sentence was unreasonable. T h e district court's judgment is AFFIRMED.

3