NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 12a0542n.06

No. 11-5602

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

LUIS MENDEZ-PEREZ,

Defendant-Appellant.

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ON APPEAL FROM THE UNITED

STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF

KENTUCKY

Before: MARTIN and DAUGHTREY, Circuit Judges; MALONEY, Chief District Judge.*

PER CURIAM. Luis Mendez-Perez, a federal prisoner represented by counsel, appeals a

district court judgment following his guilty plea to illegal reentry into the United States as a

previously deported alien subsequent to a felony conviction, in violation of 8 U.S.C. § 1326.

Mendez-Perez’s presentence report calculated his advisory sentencing guidelines range to

be fifteen to twenty-one months of imprisonment. However, the report noted that there were factors

that would justify a variance from this range. At the sentencing hearing, the district court noted that

Mendez-Perez had illegally reentered this country twelve times and had several drunk- driving

convictions, indicating that he posed a danger to the public. The court also found that Mendez-Perez

was dangerous because of his previous involvement in alien smuggling. The district court decided

to vary upward from the top of the guidelines range one month for each of the twelve times that

Mendez-Perez had illegally reentered the country. Therefore, the court imposed a sentence of thirtyThe Honorable Paul L. Maloney, Chief United States District Judge for the Western District *

of Michigan, sitting by designation.
No. 11-5602

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three months of imprisonment. The district court inquired whether there were any objections, and

Mendez-Perez’s attorney stated that there were none.

On appeal, with a new attorney, Mendez-Perez objects to the upward variance. He notes that

he had alreadyreceived a four-level enhancement to his offense level due to his previous deportation.

Because Mendez-Perez failed to raise his objection after being invited to do so by the district

court, his sentence is reviewed for plain error. See United States v. Vonner, 516 F.3d 382, 385-86

(6th Cir. 2008) (en banc). To the extent that he argues his sentence is substantively unreasonable,

we review the district court’s decision for an abuse of discretion. United States v. Brooks, 628 F.3d

791, 797 (6th Cir.), cert. denied, 131 S. Ct. 3077 (2011). No plain error or abuse of discretion are

apparent in this case. 

Although Mendez-Perez received an enhancement to his offense level for a previous

deportation, the district court properly considered the fact that Mendez-Perez had actually illegally

reentered the United States twelve times. The district court also properly considered the danger to

the public caused by Mendez-Perez’s numerous convictions for driving under the influence and for

his involvement in alien smuggling. We have previously upheld upward variances in cases based

on the number of prior removals from this country and the risk to the public demonstrated by prior

convictions, including drunk-driving offenses. United States v. Tristan-Madrigal, 601 F.3d 629,

634-35 (6th Cir. 2010). Finally, Mendez-Perez has not demonstrated that a different sentence was

required in his case. See United States v. Brown, 579 F.3d 672, 687 (6th Cir. 2009). 

The district court’s judgment is affirmed.