IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-20298

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JOSE EMILIO RODRIGUEZ VILLALOBOS, also known as Jose Villalobos

Rodriguez, also known as Jose Emilio Villalobos-Rodriguez, also known as Jose

V. Rodriguez, also known as Jose Emilio Rodriguez-Villalobos, also known as

Jose Emilio Rodriguez,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:11-CR-6-1

Before WIENER, STEWART, and HAYNES, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Jose Emilio Rodriguez Villalobos (Rodriguez) appeals

the 48-month sentence he received for illegal reentry by an alien who was

previously deported following a felony conviction. Rodriguez asserts that the

district court procedurally erred by failing to provide adequate reasons for the

extent of the variance from a guidelines sentencing range of 24 to 30 months. 

United States Court of Appeals

Fifth Circuit

F I L E D

March 5, 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: 11-20298 Document: 00511777373 Page: 1 Date Filed: 03/05/2012
No. 11-20298

The district court explained that the 48-month sentence was shortest

sentence that could meet the 18 U.S.C. § 3553(a) objectives of affording

deterrence, promoting respect for the law, reflecting the seriousness of the

offense, providing just punishment, and protecting the public. The court

emphasized Rodriguez’s history of recidivism, his three previous deportations,

and his prior federal conviction for illegal reentry. The court observed that his

previous 30-month sentence for illegal reentry had no deterrent effect, as

Rodriguez returned to the United States and was convicted of theft little more

than year later. He subsequently was deported again, returned again, and was

convicted again of theft, among other crimes. These facts, used by the district

court to support the variance, are consistent with the sentencing objectives of

§ 3553(a). See § 3553(a); United States v. Mares, 402 F.3d 511, 519 (5th Cir.

2005). The district court’s explanation allows meaningful review and promotes

the perception of fair sentencing. See Gall v. United States, 552 U.S. 38, 50 (5th

Cir. 2007). We find no significant procedural error. See id.; Mares, 402 F.3d at

519.

Rodriguez also challenges the extent of the variance, asserting that the

district court failed to give proper weight to the Guidelines and his personal

history, family ties, and fear of drug violence in Mexico. He contends that the

sentence “simply incapacitates a nonviolent offender who clearly wants to

change his life and establish a secure life in Mexico, with the help of his

brothers, so that he may help his son provide for his disabled grandson.” He

concludes that the district court erred in balancing the § 3553(a) factors.

The district court placed greater weight on facts of Rodriguez’s past--his

longstanding criminal lifestyle, pattern of illegally reentering the United States,

and the failure of a prior 30-month sentence for illegal reentry to deter him--

than on his promise lawfully to support his family from Mexico in the future. In

light of Rodriguez’s history, which includes 10 convictions for serious offenses

and three deportations within a 19-year period, such a promise lacked

2

Case: 11-20298 Document: 00511777373 Page: 2 Date Filed: 03/05/2012
No. 11-20298

credibility. The district court properly emphasized his criminal history. See

United States v. Herrera-Garduno, 519 F.3d 526, 531 (5th Cir. 2008). Rodriguez

fails to show that his sentence does not account for a factor that should have

received significant weight, that it gives significant weight to an irrelevant or

improper factor, or that it represents a clear error in balancing the § 3553(a)

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

The district court did not abuse its discretion in imposing the 48-month

sentence. The judgment of the district court is AFFIRMED.

3

Case: 11-20298 Document: 00511777373 Page: 3 Date Filed: 03/05/2012