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

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 gu i l t y 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 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 Novembe r 6, 2 012 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t hasd 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: 12-50189 Document: 00512044826 Page: 1 Date Filed: 11/06/2012No. 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

a n d his benign motive for returning to the United States of being wi t h h i s family. The district court c o n sidered Caldera Lazo’s arguments for a guidelines sentence, including his acce p t anc e of re s p o n s ib ility , hi s cultural assimilation, his plans to remain in Mexico after release, and his young age a t t h e time he committ e d h i s 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 i n W a s h i ngton 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 serious n e s s of the offense, to promote respect for the law, and to provide just punishment; to afford adequate deterrence to criminal con d uct; and to protect the public. The sentence imposed “was reason ab l e u n d e r the totality of the relevant statutory factors.” See United States v. Brantley , 537 F.3d 347, 349 (5th Cir. 2008) (i n t ernal quotation marks and citation omitted). Caldera Lazo essentially seeks to have his sentence vacated based on a reweighing of the § 3553( a) f

a c t o rs by this court, which appellate courts should not do. See Gall

v. Un i t e d S t ates , 552 U.S. 38, 51 (2007). There is nothing in the record that indicates that the district court did not account for a fa c t o r th a t 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). Furth e r , the extent of the variance was reasonable. See United States v. Lo p ez-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