### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

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 th e 2 7-month, above-guidelines s entence h e received after h e pleaded guilty to illegal reentry. Tirado argues that hi s sentence is substantively unreasonable. He contends that his criminal history category adequately reflected th e s e ri o u s n e s s of his criminal history and that the sentence was greater than necessary to comply with the purposes o f punishment in that it double counted his criminal history. He fu r ther c ontends that the sentence overst a t e d the seriousness of his o ffense, which was “at bottom, an U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D Septem ber 12, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

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internati o n a l trespass.” Last, he argues that it failed to p rovide just punishment, undermined respect for the law, and failed to reflect his personal history and characteristics, n amely his di fficult childhood in M e xico, alcohol abuse, and reason for returning to this country. We review sentences for reasonableness. G all v. United States , 552 U.S. 38, 5 1 (2007). We have rejected the argument that a sentence imposed pursuant to U.S.S.G. § 2L1.2 i s greater than necessary t o meet 18 U.S.C. § 3553(a)’s goals

as a result of any double counting inherent in t hat Guideline. United S tates v. Duarte , 569 F.3d 528, 529-31 (5th Cir. 2 009). We h a v e also rejected the argument that the G uidelines overstate the s eriousness of il l egal reentry because it is simply an i nternation a l t respass offense. United States v. Aguirre-Villa , 460 F.3d 681, 683 (5th Cir. 2006). To determine the s ubstantive reasonableness of a s entence, w e c onsider “the totality of t h e circumstances, granting deference to the district court’s determination of the appropri a te s e ntence based on the § 3 553(a) factors.” United States v. McElwee , 646 F.3d 328, 337 (5th Cir. 2 011) (internal quotation

m arks and citations omitted). If a district court deviates from t h e guidelines range, we defer t o the district court’s determination that the § 3553(a) factors

w a rrant the extent of t he variance. Id. A significant deviation d o e s n o t constitute an abuse of discretion i f it is “commensurate with the individualized, case-specific reasons provided b y the district court.” Id. at 338 (internal quotation m arks 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 a c c o u n t f

or a factor that should have received significant weight, (2) gives significant weight to an i rrelevant or i mproper 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 r eferenced § 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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Thus, the district court gave individualized, case-specific reasons f o r it s s e nt ence and i t s upward variance w as not an abuse of discretion. See United States v. Heard, 709 F.3d 413, 4 35 (5th Cir.2013), petition f or cert. filed (May 20, 2013) (No. 12-10481); S mith , 440 F. 3 d a t 7 0 8

. Tirado essentially asks this court to reweigh the sentencing f actors, w hich this court will not do. See M cElwee , 646 F.3d at 343-44. AFFIRMED.

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