USA v. Humberto Loma-Perez

Filing

UNPUBLISHED OPINION FILED. [09-41242 Affirmed ] Judge: CDK , Judge: HRD , Judge: JLD Mandate pull date is 11/29/2010 for Appellant Humberto Loma-Perez [09-41242]

USA v. Humberto Loma-Perez Case: 09-41242

Document: 00511285768 Page: 1 Date Filed: 11/05/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-41242 S u m m a r y Calendar November 5, 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. H U M B E R T O LOMA-PEREZ, 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 Southern District of Texas U S D C No. 2:09-CR-715-1

B e fo r e KING, DeMOSS, and DENNIS, Circuit Judges. PER CURIAM:* H u m b e r t o Loma-Perez (Loma) appeals from the 22-month non-guidelines s e n te n c e imposed by the district court following his conviction for illegal reentry. Even if Loma preserved in the district court the errors he now alleges, he fails t o show that his sentence is unreasonable. See Gall v. United States, 552 U.S. 3 8 , 51 (2007). Contrary to Loma's contention, it was not improper for the district c o u r t to consider for sentencing purposes crimes that he committed in the 1990's, in c lu d in g auto larceny, simply because they were too old to contribute to his
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
*

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Case: 09-41242 Document: 00511285768 Page: 2 Date Filed: 11/05/2010 No. 09-41242 g u id e li n e s range. See 18 U.S.C. § 3553(a). Further, Loma's argument that he h a s overcome the alcoholism that caused him to commit crimes in the past ig n o r e s that he committed, but was not prosecuted for, four other illegal r e e n tr ie s between 1999 and 2008; the last two of these reentries, as well as the in s t a n t count of conviction, were committed following his alleged sobriety. Under these circumstances, Loma fails to show that the district court abused its d i s c r e tio n by imposing a sentence above the guidelines range to protect the p u b lic and to deter Loma from committing future crimes. See Gall, 552 U.S. at 5 1 ; § 3553(a). T h e four-month upward variance from the guidelines range of 18 to 22 m o n th s of imprisonment is considerably less than other sentences that this court h a s affirmed. See United States v. Smith, 440 F.3d 704, 708 n.5, 709-10 (5th Cir. 2 0 0 6 ) (upholding variance from guidelines range maximum of 27 months to 60 m o n th s ); United States v. Smith, 417 F.3d 483, 492 (5th Cir. 2005) (upholding d e p a r t u r e from guidelines range maximum of 41 months to 120 months). AFFIRMED.

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