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. 08-11205

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ROBERTO FLORES-MERAZ, also known as Luis Fernando Quintero-Fores, also

known as Roberto Flores-Miras,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:08-CR-112-ALL

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

Roberto Flores-Meraz (Flores) appeals his 120-month sentence for illegal

reentry. He argues that the district court erred by upwardly departing from a

guidelines range of 77-96 months of imprisonment because the sentence

effectively denied Flores an acceptance of responsibility adjustment.

This court reviews criminal sentences for reasonableness, using an abuse

of discretion standard. Gall v. United States, 128 S. Ct. 586, 594-96 (2007).

United States Court of Appeals

Fifth Circuit

F I L E D

October 7, 2009

Charles R. Fulbruge III

Clerk
No. 08-11205

2

First, this court examines whether the district court committed any procedural

errors, “such as failing to calculate (or improperly calculating) the Guidelines

range, treating the Guidelines as mandatory, failing to consider the § 3553(a)

factors, selecting a sentence based on clearly erroneous facts, or failing to

adequately explain the chosen sentence--including an explanation for any

deviation from the Guidelines range.” Id. at 597. If the district court’s decision

is procedurally sound, this court will “consider the substantive reasonableness

of the sentence imposed under an abuse-of-discretion standard . . . tak[ing] into

account the totality of the circumstances.” Id.

Reasonableness review, in the context of a guidelines departure, requires

this court to evaluate both “the district court’s decision to depart upwardly and

the extent of that departure for abuse of discretion.” United States v. ZunigaPeralta, 442 F.3d 345, 347 (5th Cir. 2006) (internal quotation marks and citation

omitted). “An upward departure by a district court is not an abuse of discretion

if the court’s reasons for departing 1) advance the objectives set forth in 18

U.S.C. § 3553(a)(2) and 2) are justified by the facts of the case.” Id. (internal

quotation marks and citation omitted).

The district court clearly stated that it was not denying Flores an

adjustment for acceptance of responsibility. District courts may upwardly

depart and impose statutory maximum sentences upon defendants who have

received acceptance of responsibility adjustments. See United States v. Jones,

444 F.3d 430, 433-34, 443 (5th Cir. 2006); Zuniga-Peralta, 442 F.3d. at 346-48.

Flores’s extensive criminal history, the district court’s rationale for

departure, provided adequate justification for the departure, and the sentence

furthered the objectives set forth in § 3553(a)(2). See Zuniga-Peralta, 442 F.3d

at 347. Moreover, the extent of the departure is proportionally less than

departures we have affirmed in other cases. See Jones, 444 F.3d at 433; ZunigaPeralta, 442 F.3d at 346-48. 

AFFIRMED.