IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-20850

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

MANUEL DE JESUS PEREZ ALVAREZ, also known as Manuel Jesus Perez,

also known as Manuel Perez, also known as Manuel De Jesus Perez-Alvarez,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:09-CR-380-1

Before JOLLY, GARZA, and STEWART, Circuit Judges.

PER CURIAM:

*

Manuel de Jesus Perez Alvarez appeals the 48-month sentence imposed

following his conviction for illegal reentry. Alvarez argues that the sentence was

procedurally unreasonable because the district court did not adequately explain

its reasons for the sentence. He also contends that his sentence was

substantively unreasonable because it overstates the seriousness of his offense,

which he characterizes as “an international trespass.” Alvarez further contends

United States Court of Appeals

Fifth Circuit

F I L E D

August 20, 2010

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.

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No. 09-20850

that he had good motives for reentering to the United States, because he

returned to see his mother and his child. He also argues that the district court’s

sentence did not take into account his personal history and characteristics.

Because Alvarez did not object to his sentence, this court’s review is for

plain error. See United States v. Peltier, 505 F.3d 389, 391–92 (5th Cir. 2007).

To demonstrate plain error, Alvarez must show an error that is clear or obvious

and that affects his substantial rights. See United States v. Baker, 538 F.3d 324,

332 (5th Cir. 2008). If Alvarez makes such a showing, this court will correct

such an error only if it seriously affects the fairness, integrity, or public

reputation of judicial proceedings. Id.

This court recognizes three different types of sentences: (1) a withinguidelines sentence, (2) an upward or downward departure under the

Guidelines, and (3) a non-Guidelines sentence or “variance” that is outside of the

guideline range. United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008).

Although the parties’ briefs reflect uncertainty as to the type of sentence

imposed, the district court’s written Statement of Reasons (SOR) makes clear

that the district court upwardly departed under U.S.S.G. § 4A1.3(a)(4)(B) based

on the inadequacy of Alvarez’s criminal history category. The SOR shows that

Alvarez was sentenced within the guideline range of 46–51 months that resulted

from the upward departure.

The district court thoroughly articulated fact-specific reasons for its

sentence that were consistent with the sentencing factors set forth in 18 U.S.C.

§ 3553(a). These reasons included Alvarez’s extensive criminal history, his

propensity for violence, and the district court’s determination that it was

necessary to separate Alvarez from society so that he would not cause additional

harm. The district court listened to Alvarez’s argument that he was a changed

person, but it rejected that argument, noting that Alvarez continued to act

irresponsibly. Alvarez has not shown plain error in the district court’s

explanation for its sentence. See Baker, 538 F.3d at 332.

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Because Alvarez was sentenced within the guideline range, the district

court’s sentence is entitled to a presumption of reasonableness. See United

States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). Alvarez has failed to

overcome the presumption of reasonableness that attaches to such a sentence.

See United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008); United

States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006). Nor has Alvarez

shown plain error with regard to the issue of the substantive reasonableness of

the sentence. See Baker, 538 F.3d at 332.

The judgment of the district court is AFFIRMED.

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