USA v. Jose Solis-Castillo

Filing

UNPUBLISHED OPINION FILED. [09-50928 Affirmed ] Judge: WED , Judge: JES , Judge: LHS Mandate pull date is 11/17/2010 for Appellant Jose Solis-Castillo [09-50928]

USA v. Jose Solis-Castillo : 09-50928 Case

Document: 00511276540 Page: 1 Date Filed: 10/27/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
October 27, 2010 N o . 09-50928 S u m m a r y Calendar Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t iff - Appellee v. J O S E SOLIS-CASTILLO D e fe n d a n t - Appellant

A p p e a l from the United States District Court for the Western District of Texas U S D C No. 2:09-CR-531-1

B e fo r e DAVIS, SMITH, and SOUTHWICK, Circuit Judges. P E R CURIAM:* J o s e Solis-Castillo appeals his sentence. He pled guilty to illegal reentry in t o the United States after having previously been removed, in violation of 8 U .S .C . § 1326(a) & (b)(2). At sentencing, the district court varied upwardly from S o lis -C a s t illo 's calculated Guidelines imprisonment range of 41 to 51 months a n d imposed an 80-month prison sentence. s e n te n c e is substantively unreasonable. Solis-Castillo argues that 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-50928 Document: 00511276540 Page: 2 Date Filed: 10/27/2010

No. 09-50928 S e n t e n c e s are viewed for reasonableness in light of the sentencing factors in 18 U.S.C. § 3553(a). See United States v. Mares, 402 F.3d 511, 519-20 (5th C ir . 2005). We utilize an abuse of discretion standard to consider the

s u b s t a n t iv e reasonableness of the sentence imposed. Gall v. United States, 552 U .S . 38, 51 (2007). T h e district court thoroughly addressed the Section 3553 factors and cited fa c t -s p e c ific reasons for imposing the non-Guidelines sentence. See United S ta te s v. Tzep-Mejia, 461 F.3d 522, 527 (5th Cir. 2006). The district court did not f a i l to account for a factor which should have received significant weight, give s ig n ific a n t weight to an irrelevant or improper factor, or make a clear error of ju d g m e n t in balancing the sentencing factors. See United States v. Smith, 440 F .3 d 704, 708 (5th Cir. 2006). In light of its finding of an under-representation o f Solis-Castillo's criminal history, the nature of his prior offense, and the need t o protect the public as well as to deter future criminal conduct, the district court d id not abuse its discretion in imposing a sentencing variance. See United States v . Lopez-Velasquez, 526 F.3d 804, 806 (5th Cir. 2008). F u r t h e r m o r e , although the 80-month sentence imposed was 29 months h ig h e r than advisory guidelines maximum of 51 months, this court has affirmed m u c h greater non-guidelines sentences. See, e.g., United States v. HerreraG a r d u n o , 519 F.3d 526, 530-32 (5th Cir. 2008) (affirming as reasonable a 60m o n th sentence imposed where the advisory guidelines range was 21 to 27 m o n th s in prison). Solis-Castillo has not shown that the district court imposed a substantively unreasonable sentence. See Gall, 522 U.S. at 51. Accordingly, t h e judgment of the district court is AFFIRMED.

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