IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-51290

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

CRISTOBAL TIRADO-CRUZ,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 2:12-CR-728-1

Before KING, DAVIS, and ELROD, Circuit Judges.

PER CURIAM:*

Cristobal Tirado-Cruz appeals the 27-month, above-guidelines sentence

he received after he pleaded guilty to illegal reentry. Tirado argues that his

sentence is substantively unreasonable. He contends that his criminal history

category adequately reflected the seriousness of his criminal history and that the

sentence was greater than necessary to comply with the purposes of punishment

in that it double counted his criminal history. He further contends that the

sentence overstated the seriousness of his offense, which was “at bottom, an

United States Court of Appeals

Fifth Circuit

F I L E D

September 12, 2013

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. 12-51290

international trespass.” Last, he argues that it failed to provide just

punishment, undermined respect for the law, and failed to reflect his personal

history and characteristics, namely his difficult childhood in Mexico, alcohol

abuse, and reason for returning to this country. 

We review sentences for reasonableness. Gall v. United States, 552 U.S.

38, 51 (2007). We have rejected the argument that a sentence imposed pursuant

to U.S.S.G. § 2L1.2 is greater than necessary to meet 18 U.S.C. § 3553(a)’s goals

as a result of any double counting inherent in that Guideline. United States v.

Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009). We have also rejected the

argument that the Guidelines overstate the seriousness of illegal reentry

because it is simply an international trespass offense. United States v.

Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006). 

To determine the substantive reasonableness of a sentence, we consider

“the totality of the circumstances, granting deference to the district court’s

determination of the appropriate sentence based on the § 3553(a) factors.” 

United States v. McElwee, 646 F.3d 328, 337 (5th Cir. 2011) (internal quotation

marks and citations omitted). If a district court deviates from the guidelines

range, we defer to the district court’s determination that the § 3553(a) factors

warrant the extent of the variance. Id. A significant deviation does not

constitute an abuse of discretion if it is “commensurate with the individualized,

case-specific reasons provided by the district court.” Id. at 338 (internal

quotation marks and citation omitted). A non-guidelines sentence unreasonably

fails to reflect the statutory sentencing factors set forth in § 3553(a) when it

(1) does not account for a factor that should have received significant weight,

(2) gives significant weight to an irrelevant or improper factor, or (3) represents

a clear error of judgment in balancing the sentencing factors. United States v.

Smith, 440 F.3d 704, 708 (5th Cir. 2006). 

The district court referenced § 3553(a), Tirado’s substance abuse, his

violent history in this country, his recidivism, and the need to protect the public. 

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No. 12-51290

Thus, the district court gave individualized, case-specific reasons for its sentence

and its upward variance was not an abuse of discretion. See United States v.

Heard, 709 F.3d 413, 435 (5th Cir.2013), petition for cert. filed (May 20, 2013)

(No. 12-10481); Smith, 440 F.3d at 708. Tirado essentially asks this court to

reweigh the sentencing factors, which this court will not do. See McElwee, 646

F.3d at 343-44. 

AFFIRMED.

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