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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-50002

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ALBERTO SALVADOR PONCE-PONCE, also known as Javier DominguezAguilar,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:08-CR-2210-ALL

Before WIENER, STEWART, and ELROD, Circuit Judges.

PER CURIAM:*

Alberto Salvador Ponce-Ponce (Ponce) appeals the 60-month sentence

imposed by the district court after he pleaded guilty to illegal reentry pursuant

to 8 U.S.C. § 1326(a). He argues that the sentence is procedurally unreasonable

because it is based, in part, on clearly erroneous facts and that the sentence is

greater than necessary to satisfy the sentencing goals outlined in 18 U.S.C.

§ 3553(a). 

United States Court of Appeals

Fifth Circuit

F I L E D

November 6, 2009

Charles R. Fulbruge III

Clerk
No. 09-50002

2

In its written Statement of Reasons (SOR), the district court explained the

reasons for imposing the sentence by stating that the “[d]efendant has

committed over twenty burglaries and has not been amenable to received mental

health treatment to deal with his impulsivity.” Ponce argues that this statement

is evidence that the district court was under the mistaken impression that he

had refused to take medication to treat his bipolar disorder and that the district

court considered this clearly erroneous fact when balancing the § 3553(a) factors.

Ponce has not demonstrated that the district court committed procedural error

by relying on clearly erroneous facts. See Gall v. United States, 552 U.S. 38, 128

S. Ct. 586, 597 (2007); United States v. Herrera-Garduno, 519 F.3d 526, 530 (5th

Cir. 2008).

Nothing in the record indicates that the district court was under the

impression that Ponce had ever refused offered treatment or medication. On the

contrary, the record is clear that the district court imposed a sentence based on

Ponce’s extensive criminal history, which included at least eleven prior

convictions for burglary of a building and one prior conviction for illegal reentry;

the need for rehabilitation; the need to protect the public; and the need to

provide Ponce with appropriate and continued mental health and medical

treatment.

Ponce argues that although it was proper for the district court to consider

his criminal history and the need for deterrence, the court focused too heavily on

these factors and did not meaningfully consider other mitigating circumstances

such as his mental and physical health issues and his motives for illegally

reentering the United States. Our review of the record reveals that the district

court fully considered all of these issues and addressed Ponce’s concerns by

recommending mental health and medical treatment during imprisonment. 

As we have previously explained, “the sentencing court is free to conclude

that the applicable Guidelines range gives too much or too little weight to one

or more factors, and may adjust the sentence accordingly under § 3553(a).”
No. 09-50002

3

United States v. Lopez-Velasquez, 526 F.3d 804, 807 (5th Cir.), cert. denied, 129

S. Ct. 625 (2008) (internal quotation marks and citation omitted). Therefore, the

district court did not err in considering Ponce’s substantial criminal history or

the need to deter Ponce from future criminal conduct.

Ponce has not shown that his sentence is substantively unreasonable. It

was not an abuse of discretion for the district court to conclude, considering

Ponce’s criminal history and the § 3553(a) factors of deterrence, respect for the

law, and protection of the public, that a 60-month sentence was necessary to

achieve those sentencing goals. See id. at 806-08. Accordingly, the judgment of

the district court is AFFIRMED.