### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCUIT

No. 11-50162 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. JOSE ABELARDO AMAYA-PORTILLO, Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 2:10-CR-1002-1

Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges. PER CURIAM: * Jose Abelardo Amaya-Portillo (Amaya) appeals his sentence following his guilty plea conviction for illegal reentry into th e United States. Amaya was sentenced to 24 months of imprisonment, which constituted an upward variance from his advisory guidelines range of 8 to 14 months of imprisonment, and three years of su p e rvised release. He contends that his sentence is greater than necessary to satisfy the requirements of 18 U.S.C. § 3553(a). U n i te d S ta te s C o u rt o f Ap p ea l s F i ft h C i rc u i t 

### F I L E D Octob er 20 , 20 11 Lyle W . Cayce Clerk

Purs uant to 5 TH C IR

. R. 47.5 , the court hasd ete rm inedthat thisop inion sho uld not * be publish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 TH C IR

. R. 47.5 .4. Case: 11-50162 Document: 00511638720 Page: 1 Date Filed: 10/20/2011No. 11-50162

The district court found that the Guidelines “do not adequately account for all of the criminal convictions that in this defendant’s background.” The court noted six adult convictions that did not score any criminal history points, and the court found that the history and characteristics of the defendant, the need to promote respect for the law, and the need to protect the p ub li c w e r e not adequately s e rv e d by the advisory guideline range. In overruling Amaya’s objection to the sentence, the court also noted Amaya’s prior 18-month sentence for a prior illegal reentry conviction and indicated that a higher s e ntence was necessary in order to afford adequate deterrence to criminal conduct. Thus, the district court m a de an individual assessment and concluded that the advisory guidelines range gave insufficient weight to some of the sentencing factors. See United States v. Williams , 517 F.3d 801, 809 (5th Cir. 2008). Amaya’s above-guidelines sentence was reasonable in light of “th e totality of the circumstances,” and we “must give due deference to the district court’s decision that the § 3553(a) f

actors, on a whole, justify the extent of the variance.” Gall v. United States , 552 U.S. 38, 51 (2007). Amaya characterizes his criminal history as relatively m i n o r , but his criminal history includes numerous convictions and arrests for serious offenses and supports the district court’s upward variance. See United States v. Herrera-Garduno , 519 F.3d 526, 531 (5th Cir. 2008). He complains that § 2L1.2 increases a defendant’s offense level based on criminal history, which Chapter 4 of the G u i d e lines also take into account. Only one of Amaya’s prior sentences scored criminal history points under Chapter 4. In any case, we have rejected the contention that the use of a prior conviction both to increase the offense level and to calculate the criminal history category i s i m permissible. United States

v. Duarte , 5 6 9 F.3d 528, 529-31 (5th Cir. 2009). We have also rejected the argument that a sentence is excessive because illegal reentry is a trespassing crime. See United States v. Aguirre-Villa , 460 F.3d 681, 683 (5th Cir. 200 6). AFFIRMED.
2 Case: 11-50162 Document: 00511638720 Page: 2 Date Filed: 10/20/2011