IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-10626

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JOSE DANIEL VARGAS-VELASQUEZ,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 1:08-CR-76-1

Before WIENER, PRADO, and OWEN, Circuit Judges.

PER CURIAM:

*

Defendant-Appellant Jose Daniel Vargas-Velasquez (Vargas) appeals the

75-month sentence imposed following his guilty plea conviction for illegal reentry

after deportation. The district court imposed an upward variance from the

guidelines range of 21 to 27 months based, inter alia, on Vargas’s history and

characteristics, which included numerous convictions that were too old to be

counted when computing his criminal history score. Vargas presents two

arguments: (1) that the district court’s reasons for his sentence were inadequate

United States Court of Appeals

Fifth Circuit

F I L E D

August 11, 2010

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.

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No. 09-10626

because the court failed to explain why it disagreed with the Sentencing

Commission’s decision not to include aged convictions when calculating a

defendant’s criminal history score; and (2) that his sentence was unreasonable

because the district court failed to consider a factor that should have received

significant weight, his ability to earn a steady income.

Vargas’s first claim, that the district court procedurally erred by not

adequately explaining its reasons for disagreeing with the Commission, is

unpersuasive. The district court’s reasons for the upward variance were factspecific and consistent with the 18 U.S.C. § 3553(a) sentencing factors. See

United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006). In particular, the

district court carefully weighed the § 3553(a) factors and articulated sufficiently

compelling reasons to justify the 75-month sentence. The court noted his four

prior DWI convictions; his six prior convictions that were not used to calculate

his criminal history category; his prior convictions for resisting arrest, including

assaulting a peace officer; his prior drug conviction; his evident lack of respect

for the law; the need for deterrence; and the need to protect the public. The

district court’s reasons were sufficient to justify the variance and the extent and

to satisfy the requirement that the court give reasons to permit meaningful

appellate review. See Smith, 440 F.3d at 707. Accordingly, Vargas has not

shown plain error in connection with the district court’s reasons. See United

States v. Peltier, 505 F.3d 389, 391-94 (5th Cir. 2007).

Vargas’s second claim, that his sentence is unreasonable, is likewise

unavailing. The district court made the required individualized assessment and

was free to conclude, as it did, that in Vargas’ s case the guidelines range gave

insufficient weight to some of the sentencing factors, including his history and

characteristics, the seriousness of the offense, the need to provide just

punishment, and the need for deterrence. See United States v. Williams, 517

F.3d 801, 809 (5th Cir. 2008); § 3553(a). Furthermore, although Vargas contends

that the court did not consider a factor that should have been afforded

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No. 09-10626

significant weight, that is, his ability to earn a steady income, he presents no

convincing argument that this factor is substantial enough that it should have

been weighted more heavily. See Smith, 440 F.3d at 708. Accordingly, Vargas

has not established that his sentence was unreasonable.

The district court’s judgment is AFFIRMED.

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