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

No. 10-20828 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. CARL O S M O R E N O M O LI NA , also known as Carlos Molina-Moreno, also kno wn as Jose Benjamin Garcia Vega, also known as Ciberio Vega Garcia, also known as Ceberio Vega Garcia, also known as Ceberio Vega-Garcia, also known as Jose Benjamin Vega-Garcia, also known as Ruben Ramirez, also known as Jose Bega, also known as Hector Gonzalez Moreno , a l so known as Benjamin Garcia, also known as Benjamin Vega Garcia, also known as Benjamin Vega, also known as Beta Benjermino, also known as Beta Benjamin, also known as Benjamin Beta, also known as Benjermino Beta, Defendant-Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:10-CR-485-1

Before WIENER, GARZA, , and CLEMENT, Circuit Judges. PER CURIAM: * Defendant-Appellant Carlos More n o Molina appeals the 60-month sentence he received for reentering the United States as a previously deported 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 July 21, 2 011 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t has d 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: 10-20828 Document: 00511546844 Page: 1 Date Filed: 07/21/2011No. 10-20828

alien after conviction for an aggravated felony. Molina asserts that the district court procedurally erred in upwardly departing from the guidelines range of 18 to 24 months un der U.S.S.G. § 4A1.3(a)(1) to a sentence commensurate with offense level 17 a n d c r i m inal history category VI without explaining why it rejected intermediate criminal history categories. We review the issue for plain error. See Puckett v. Unit e d States , 129 S. Ct. 1423, 142 8

- 2 9 (2009). Although Molina objected to the sentence as procedura l l y unreasonable in the district court on the ground that the court failed to provide sufficient reasons for the departure, he did not identify as error the district court’s failure to address the intervening criminal history categories. The district court’s failure to address the intermediate criminal history categories was not a clear or obvious error. It is appar e n t f r o m t h e court’s

reasons that it imposed the 60-month sentence to protect the public and deter Molina from committing further crimes. See United States v. Ashburn , 38 F.3d 803, 809-10 (5th Cir. 1994) (en banc); United States v . L a m b e rt , 984 F.2d 658, 663-64 (5th Cir. 1993) (en banc); United States v. Zuniga-Peralta , 442 F.3d 345, 348 & n.2 (5th Cir. 2006); United States v. Simkanin , 420 F.3d 397, 419 (5th Cir. 2005). Moreover, even if it were clear or obvious error, Molina has not shown that it affected his substantial rights. Nothing in the record indicates that the district court would have i mposed a lesser departure if it had explicitly addressed the lower criminal history categories or that the court would not have simply imposed the 60-month sentence as a variance. Accordingly , w e find no plain error. See Puckett , 129 S. Ct. at 1429. Molina also challenges the extent of the departure. The district court cited several reasons for the sentence. It found Molina’s criminal conduct over a 25- year period to be con s i stent and significant and correctly noted that his criminality had not slowed with age. Based on the facts of s e v e ral of his offenses, the court found that Molina presented a danger to the community when “cornered, provoked, [or] annoyed” due to his lack of common sense. The court
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also emphasized his conduct in reentering the Unite d States only two weeks after his most recent deportation. The district c o urt’ s r e a s o n s f o r th e d e p artur e ap p ropriately reflect Molina’s history and characteristics and the need for the sentence to promote respect for the law, deter future criminal conduct, and protect the publ i c f r o m further

c r i m i n a l a cts by him. See 18 U.S.C. § 3553(a). The court did not abuse its discretion in determining that the 60-month sentence was appropriate. See United Stat e s v . R a

j wani , 476 F.3d 243, 250-51 (5th Cir.), modified on other grounds by, 479 F.3d 904 (5th Cir. 2007). AFFIRMED.

3 Case: 10-20828 Document: 00511546844 Page: 3 Date Filed: 07/21/2011