### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 10-41232 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. JUAN SAUCEDO-VIANEY, also known as Juan Vianey Saucedo-Orroskieta, also known as Ramiro Gomez-Orsieta, also known as Juan Gomez-Orrosquieta, also known as Juan Saucedo-Orrosquieta, also k n o wn as Juan GurrusquietaGonzalez, Defendant-Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 2:10-CR-657-1

Before JONES, Chief Judge and PRADO and ELROD, Circuit Judges. PER CURIAM: * Juan Saucedo-Vianey appeals his sen tence following his guilty-plea conviction for being illegally present in the United States after deportation. The district court sentenced him to 36 m o n th s o f imprisonment, which was a downward departure from the advisory guidelines range of 4 6

- 5 7 months. On appeal, Saucedo-Vianey a rgues that the application of a 16-level Sentencing U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Octob er 18 , 20 11 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t hasd ete rm inedt hat this op inion sho uld not * be publ ish 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 T H C IR

. R. 47.5 .4. Case: 10-41232 Document: 00511635772 Page: 1 Date Filed: 10/18/2011No. 10-41232

Guidelines enhancement was unduly harsh and over-represented his c ri m inal history and that his sentence was substantively unreasonab l e b e c ause his history and characteristics supported an even lower sentence. We review sentences for “reasonableness.” Gall v. United States , 552 U.S. 38, 46 (200 7)

. T h i s court ensures that the district court did not commit any significant procedural error and considers the substantive reasonableness of the sentence “under an abuse-of-discretion stand ar d

. ” Id. at 51. The abuse-ofdiscretion standard applies to “sentences that include an upward or downward depa rture as provided for in the guidelines.” United States v. Gutierrez-Hernandez, 581 F.3d 251, 254 (5th Cir. 200 9). The district court’s written statement of reasons indicates that it departed downward bas e d on Saucedo-Vianey’s objection that his offense level substantially overstated the seriousnes s of his prior conviction. Although Saucedo-Vianey continues to argue o n ap p e al th at this enhancement was unduly h ar sh and over-represented his criminal history, he does not explain how, in light of this successful objection and th e r e s u l ting downward departure, the district court committed any procedural error. Saucedo-Vianey also argues that his sentence was subst a n t ively unreasonable. At sentencing, the district court stated that it had considered the sentencing factors of 18 U.S.C. § 3553(a) and it discus s e d th e n e ed to deter Saucedo-Vianey from returning to the United States illegally and to impress on him the seriousness of his conduct. See§ 3553(a)(2)(A), (B). The district court

was in a superior position to find facts and assess their import under § 3553(a), and its determination of the appropriate sentence is entitled to deference. See United States v. Ca m p o s - M a ldonado , 531 F.3d 337, 339 (5th Cir. 2008). Saucedo-Vianey’s arguments do not establish that the district court abused its discretion in weighing the various sentencing factors. AFFIRMED.

2 Case: 10-41232 Document: 00511635772 Page: 2 Date Filed: 10/18/2011