IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-50189

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

NOE CALDERA LAZO, also known as Noe Lazo Caldera,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:11-CR-2170-1

Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.

PER CURIAM:*

Noe Caldera Lazo appeals the upward variance sentence of 41 months of

imprisonment imposed after his guilty plea conviction for attempted illegal

reentry into the United States after removal and the improper use of another’s

passport. He argues that the sentence was greater than necessary to effectuate

the goals of 18 U.S.C. § 3553(a). He argues that a sentence within the guidelines

range would have been sufficient but not greater than necessary to meet the

§ 3553(a) goals because he had not been convicted of the pending drug charges

United States Court of Appeals

Fifth Circuit

F I L E D

November 6, 2012

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.

Case: 12-50189 Document: 00512044826 Page: 1 Date Filed: 11/06/2012
No. 12-50189

considered by the district court; the guidelines range was high for the relatively

minor offense; and the district court failed to consider his cultural assimilation

and his benign motive for returning to the United States of being with his

family.

The district court considered Caldera Lazo’s arguments for a guidelines

sentence, including his acceptance of responsibility, his cultural assimilation, his

plans to remain in Mexico after release, and his young age at the time he

committed his prior offenses. The district court was concerned that Caldera

Lazo returned to the United States within two years after his removal and that

he had pending charges in Washington for possession of drugs with intent

distribute. The district court determined that an upward variance to 41 months

was warranted based on the § 3553(a) factors, including the need to reflect the

seriousness of the offense, to promote respect for the law, and to provide just

punishment; to afford adequate deterrence to criminal conduct; and to protect

the public. The sentence imposed “was reasonable under the totality of the

relevant statutory factors.” See United States v. Brantley, 537 F.3d 347, 349 (5th

Cir. 2008) (internal quotation marks and citation omitted). Caldera Lazo

essentially seeks to have his sentence vacated based on a reweighing of the

§ 3553(a) factors by this court, which appellate courts should not do. See Gall

v. United States, 552 U.S. 38, 51 (2007). There is nothing in the record that

indicates that the district court did not account for a factor that should have

received significant weight, gave significant weight to an irrelevant or improper

factor, or made a clear error of judgment in balancing the sentencing factors. 

See United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006). Further, the

extent of the variance was reasonable. See United States v. Lopez-Velasquez, 526

F.3d 804, 805-08 (5th Cir. 2008); Brantley, 537 F.3d at 348-50; United States v.

Jones, 444 F.3d 430, 433, 441-42 (5th Cir. 2006).

AFFIRMED.

2

Case: 12-50189 Document: 00512044826 Page: 2 Date Filed: 11/06/2012