IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-50086

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ELADIO JAVIER CARPINTERO, also known as Elaine Castillo,

also known as E. C. Carpintero, also known as Eladio Carpinter,

also known as Javier Carpinter, also known as Eladio Castillo,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 5:09-CR-294-1

Before WIENER, PRADO and OWEN, Circuit Judges.

PER CURIAM:

*

Eladio Javier Carpintero appeals the 65-month sentence he received

following his guilty-plea conviction for mail fraud, in violation of 18 U.S.C.

§ 1341. The Government argues that the appeal is barred by the waiver of

appeal provision in Carpintero’s written plea agreement.

United States Court of Appeals

Fifth Circuit

F I L E D

January 4, 2011

Lyle W. Cayce

Clerk

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: 10-50086 Document: 00511339219 Page: 1 Date Filed: 01/04/2011
No. 10-50086

This court reviews de novo whether a waiver provision bars an appeal.

United States v. Baymon, 312 F.3d 725, 727 (5th Cir. 2002). The district court

must personally address the defendant in open court, inform him of the terms

of the appellate waiver, and determine that he understands the waiver. FED.

R. CRIM. P. 11(b)(1)(N). In the instant case, the magistrate judge erroneously

advised Carpintero at rearraignment that his waiver did not bar an appeal from

a “totally unreasonable” sentence. This was an incorrect characterization of the

appeal waiver and did not comply with Rule 11(b)(1)(N). The waiver was

therefore unknowing and involuntary and does not apply to bar the instant

appeal. See United States v. Robinson, 187 F.3d 516, 517-18 (5th Cir. 1999).

Consequently, we address the merits of Carpintero’s argument that his

sentence, which represented an upward variance from the guidelines range, is

substantively unreasonable, reviewing the district court’s sentencing decision

under a highly deferential abuse-of-discretion standard. See Gall v. United

States, 552 U.S. 38, 50-51 (2007); see also United States v. Campos-Maldonado,

531 F.3d 337, 339 (5th Cir. 2008). This court also reviews whether the 18 U.S.C.

§ 3553(a) factors support the sentence and gives deference to the district court’s

determination that the § 3553(a) factors justify the variance. United States v.

Brantley, 537 F.3d 347, 349 (5th Cir. 2008). “A sentence is unreasonable if it

(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.

Peltier, 505 F.3d 389, 392 (5th Cir. 2007) (internal quotation marks and citation

omitted).

Carpintero’s argument that the sentence he received was unreasonable is

conclusional and unsupported by any legal authority. He does not point to an

overlooked sentencing factor, nor does he argue that the district court gave

weight to an improper factor or incorrectly balanced the factors. See id.

Moreover, the district court supported its sentencing determination with

2

Case: 10-50086 Document: 00511339219 Page: 2 Date Filed: 01/04/2011
No. 10-50086

reference to the § 3553(a) factors, specifically citing § 3553(a)(1), the nature and

circumstances of the offense and Carpintero’s history and characteristics, and

§ 3553(a)(2), the need to provide just punishment, adequate deterrence, and

public protection from further crimes of Carpintero.

Carpintero’s argument that his criminal history adequately reflected his

criminal past misrepresents the court’s reasoning. The court did not rely on the

inadequacy of his criminal history score but on the similarity of his prior

criminal convictions to show that he had three times impersonated an

immigration official with the intent to defraud, a pattern which demonstrates

his likelihood to recidivate. This fact, in combination with the facts that

Carpintero’s prior lenient sentence had not deterred him and that his criminal

conduct was escalating, as evidenced by the large number of victims in this case,

were proper factors on which to base an upward variance. See §§ 3553(a)(1) and

(2). Carpintero’s mere disagreement with the sentence he received is insufficient

to show that his sentence is unreasonable or that the district court abused its

sentencing discretion. See Gall, 552 U.S. at 597; see also United States v.

Rowan, 530 F.3d 379, 380 (5th Cir. 2008).

The district court’s judgment is AFFIRMED.

3

Case: 10-50086 Document: 00511339219 Page: 3 Date Filed: 01/04/2011