### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 18

- 20121 Summary Calendar

UNITED STATES OF AMERICA , Plaintiff

- Appellee

v. JOSE ANTONIO CERDA

- MENDEZ , Defendant

- Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:17

- CR

- 599

- 1

Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges. PER CURIAM: * Jose Antonio Cerda

- Mendez appeals the sentence imposed following his guilty plea conviction for illegal reentry , in violation of 8 U.S.C. § 1326(a), (b)(1). Cerda ’s advisory Sentencing G uidelin es range of imprisonment was 24 to 30 months. The district co urt departed upwardly pursuant to Guideline § 4A1.3 and imposed, inter alia , 60

- months’ imprisonment

.

* Pursuant to 5 th Cir. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 th Cir. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED January 4, 2019

Lyle W. Cayce Clerk Case: 18-20121 Document: 00514782711 Page: 1 Date Filed: 01/04/2019No. 18

- 20121

2 Cerda contends : the court procedurally erred by failing to explain adequately its decision to deviate 30 months above the advisory Guidelines sentencing range; and, his sentence was substantively unreasonable as too much emphasis was placed on his prior unprosecuted deportations and removals from the United States. Although post

- Booker , the Sentencing Guidelines are advisory only, the distri ct c ourt must avoid significant procedural error, such as imprope rly calculating the Guidelines sentencing range. Gall v. United States , 552 U.S. 38, 48

– 51 (2007). If no such procedural error exists, a properly preserved objec tion to an ultimate sentence is r eviewed for substantive r easonableness under an abuse

- of

- discretion standard. Id. at 51; United States v. Delgado

Martinez , 564 F.3d 750, 751

– 53 (5th Cir. 2009). Reasonableness review, in the context of a departure, requires us to evaluate both “the dist rict court’s decision to depart upwardly and the extent of that departure for abuse of discretion ”

. United States v. Zuniga

- Peralta , 442 F.3d 345, 347 (5th Cir. 2006) (internal quotation marks and citation omitted). In that respect, for issues p reserved in district court, its application of the Guidelines is reviewed de novo ; its factual findings, only for clear error. E.g. , United States v. Cisneros

- Gutierrez , 517 F.3d 751, 764 (5th Cir. 2008). For the claimed procedural error , the court’s st atements both at sentencing and in the statement of reasons were sufficient to support the departure. The court adopted the presentence investigation report , which stated an upward departure might be appropriate under Guideline § 4A1 .3 based on und errepresentation of Cerda ’s crim inal history; and, the court explained it was depart ing upward based on Cerda ’s “egregious criminal history ” : h is seven prior convictions for driving while intoxicated and his five prior unprosecuted deportations and removals

. Case: 18-20121 Document: 00514782711 Page: 2 Date Filed: 01/04/2019No. 18

- 20121

3 While the court did not explicitly consider on the record each intermediate offense level, see United States v. Lambert , 984 F.2d 658, 662

– 63 (5th Cir. 1993) (en banc) , it is clear from its explanation for the departure that it determined both the extent and nature of Cer da ’s criminal history, including his five prior unprosecuted deportations and voluntary removals not result ing in criminal conviction s , warranted no less than an increase to 60 months ’ imprisonment

. Se e United States v. Ashburn , 38 F.3d 803, 809

– 10 (5th Cir. 1994) (en banc ); United States v. Davila

- Martinez , 464 F. App’x 247, 249

– 50 (5th Cir. 2012) (approving upward departur e to 60 months’ imprisonment based, in part, on prior illegal reentries for which defendant was not prosecuted)

. Nor was the size of the departure so drastic as to require an “explanation in careful detail” of the reasons why lesser offense levels were in adequate. See Ashburn , 38 F.3d at 809

– 10 (internal quotation marks and citation omitted). Regarding the claim ed substantive unreasonableness , given Cerda’s lengthy criminal history, including his multiple unscored deportations and removals, his challenge to the departure is unavailing. See U.S.S.G. § 4A1.3(a)(1); Zuniga

- Peralta , 442 F.3d at 347

– 48. Accounting for the full nature and extent of Cerda ’s crimin al history advances the objectives provided in 18 U.S.C. § 3553(a)(2), particularly affording adequate deterrence and protecting the public ; and the departure is justified by the facts. See 18 U.S.C. § 3553(a)(2)(B), (C); Zuniga

- Peralta , 442 F.3d at 347

– 4 8. Moreover, the e xtent of the departure was well

- wi thin the range of departures our court has upheld. See United States v. Brantley , 537 F.3d 347, 34 8

– 50 (5th Cir. 2008) (affirming upward departure or variance to 1 80 months where the top of the G uidelin es sentencing range was 51 months); Zuniga

- Peralta , 442 F.3d at 346

– 48 Case: 18-20121 Document: 00514782711 Page: 3 Date Filed: 01/04/2019No. 18

- 20121

4 (affirming upward departure to 60 months from the 27 to 33 months ’ G uidelines sentencing range). AFFIRMED. Case: 18-20121 Document: 00514782711 Page: 4 Date Filed: 01/04/2019