USA v. Seberiano Aguilar-Torre

Filing

UNPUBLISHED OPINION FILED. [10-10863 Affirmed ] Judge: CDK , Judge: HRD , Judge: JLD Mandate pull date is 04/28/2011 for Appellant Seberiano Aguilar-Torres [10-10863]

Case: 10-10863 Document: 00511437807 Page: 1 Date Filed: 04/07/2011

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit
FILED
No. 10-10863
Summary Calendar

April 7, 2011
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
SEBERIANO AGUILAR-TORRES,
Defendant-Appellant

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:10-CR-14-1

Before KING, DeMOSS, and DENNIS, Circuit Judges.
PER CURIAM:*
Seberiano Aguilar-Torres was convicted of one count of illegal reentry into
the United States and was sentenced to serve 60 months in prison and a threeyear term of supervised release. In this appeal, he argues that his sentence,
which was the result of an upward variance, is substantively unreasonable.
Under Aguilar-Torres’s view, his above-guidelines-range-sentence was not
justified because his is not an exceptional case.

*

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-10863 Document: 00511437807 Page: 2 Date Filed: 04/07/2011
No. 10-10863
This court reviews sentencing decisions for reasonableness and applies the
abuse-of-discretion standard. United States v. Cisneros-Gutierrez, 517 F.3d 751,
764 (5th Cir. 2008). Our review of the record and Aguilar-Torres’s arguments
reveals no abuse of discretion in connection with his sentence.
Aguilar-Torres argues that the district court acted improperly by relying
in part on his “stale” convictions to choose a sentence, and he also complains that
these convictions were not serious enough to warrant the variance. He notes
that he received the same sentence applicable to those who have received the 16level increase given under U.S.S.G. § 2L1.2 to defendants with a prior
aggravated felony conviction. Also important in Aguilar-Torres’s view, and
contributing to the argument that his sentence is unduly harsh, is the fact that
not one of his prior convictions involved violence. None of these arguments
shows that his sentence “(1) does not account for a factor that should have
received significant weight, (2) gives significant weight to an irrelevant or
improper factor, or (3) represents a clear error of judgment in balancing the
sentencing factors.” United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006).
Insofar as Aguilar-Torres contends that the district court gave inadequate
reasons for its choice of sentence, this argument fails. The court’s reasons, tied
to specific facts and particular § 3553(a) factors, were sufficient to justify the
extent of the variance and to satisfy the requirement that the court give reasons
to permit meaningful appellate review. See Rita v. United States, 551 U.S. 338,
357-58 (2007). Finally, the departure, although substantial, does not represent
an abuse of the district court’s vast sentencing discretion when considered in
light of the totality of the circumstances. See Gall v. United States, 552 U.S. 38,
51 (2007); United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008).
AFFIRMED.

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