IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-20495

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

J. JESUS ALVAREZ LARA, also known as Jesus Lara Alvarez, also known as

Jesus Santanna, also known as Jesus Alvarez Lara,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:10-CR-96-1

Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:

*

J. Jesus Alvarez Lara (Alvarez) pleaded guilty to illegal reentry by a

previously deported alien and was sentenced to 46 months of imprisonment and

three years of supervised release. He now appeals his sentence, which was

based on a upward departure under U.S.S.G. § 4A1.3, arguing that the facts did

not warrant an upward departure and that the sentence was greater than

necessary to achieve the goals of 18 U.S.C. § 3553(a).

United States Court of Appeals

Fifth Circuit

F I L E D

June 1, 2011

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. 10-20495

We review Alvarez’s sentence for reasonableness. Gall v. United States,

552 U.S. 38, 51 (2007); United States v. Cisneros-Gutierrez, 517 F.3d 751, 764

(5th Cir. 2008). Reasonableness review, in the context of a guidelines departure,

requires this court to evaluate both the decision to depart upward and the extent

of the departure for an abuse of discretion. United States v. Zuniga-Peralta, 442

F.3d 345, 347 (5th Cir. 2006). An upward departure is not an abuse of discretion

if the reasons for the departure advance the objectives of § 3553(a) and are

justified by the particular facts of the case. Id.

Given Alvarez’s extensive criminal record and the lack of deterrent effect

from prior lenient sentences, the district court did not abuse its discretion by

upwardly departing based upon its finding that Alvarez’s criminal history underrepresented the seriousness of his criminal history and the likelihood that he

would recidivate. See § 3553(a); Zuniga-Peralta, 442 F.3d at 347; United States

v. Brantley, 537 F.3d 347, 349-50 (5th Cir. 2008); United States v. Simkanin, 420

F.3d 397, 418 n.24 (5th Cir. 2005); United States v. Pennington, 9 F.3d 1116,

1118 (5th Cir. 1993). Additionally, Alvarez has not shown that the district court

erred in determining the extent of the departure. See Gall, 552 U.S. at 51;

Zuniga-Peralta, 442 F.3d at 347-48. Following the direction of § 4A1.3(a)(4)(B),

because Alvarez was already in the highest criminal history category, the

district court moved incrementally down the Sentencing Table from a total

offense level of ten to an offense level of 14; a total offense level of 14 with a

criminal history category of VI yielded a new advisory sentencing guidelines

range of 37 to 46 months of imprisonment. See U.S.S.G. Ch.5, Pt. A, Sentencing

Table. The district court determined that 46 months was the most appropriate

and reasonable sentence for Alvarez. This 46-month sentence was 16 months

greater than the high-end of the guidelines sentence range applicable without

the upward departure. See U.S.S.G. Ch. 5, Pt. A, Sentencing Table. This court

has affirmed similar and more substantial departures. See Zuniga-Peralta, 442

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No. 10-20495

F.3d at 346-48; United States v. Lee, 358 F.3d 315, 328-29 (5th Cir. 2004); United

States v. McKenzie, 991 F.2d 203, 205 n.7, 206 n.8 (5th Cir. 1993).

Accordingly, the district court’s judgment is AFFIRMED.

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Case: 10-20495 Document: 00511495066 Page: 3 Date Filed: 06/01/2011