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

No. 11-20298 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. JOSE EMILIO RODRIGUEZ VILLALOBOS, a l s o 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: * D e f e n d a n t

- Ap p e ll a n t J o s e E m i l i o R o dri gu e z Vi l l a l ob o s (R o dri gu e z ) ap p e a l s the 48-month sentence he received for il l e g a l r e e ntry by an alien who was previously deported f

ollowing a felony conviction. Rodriguez asserts that the district court procedurally erred by failing to provide adequate reasons f or the extent of the variance from a guidelines sentencing range of 24 to 30 months. 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 March 5, 20 12 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t has d 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 for th in 5 T H C IR

. R. 47.5 .4. Case: 11-20298 Document: 00511777373 Page: 1 Date Filed: 03/05/2012No. 11-20298

The d i s t r i ct court explained that the 48-month sentence was shortest sentence that could meet the 18 U.S.C. § 3553(a) objective s of affording deterrence, promoting respec t f o r 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 f o r i l legal 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 the ft, among other crimes. These facts, used by the district court to suppor t t h e v a riance, are consistent with the sentencing objectives of § 3553(a). Se e § 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 c o u r t failed to give proper weight to the Guidelines and his personal history, f

a m i ly ties, and fear of drug violence in Mexico. He contends that the sentence “simply incapac i t a t e s a nonviolent offender who clearly wants to change his l i f

e a n d e stablish a secure life in Mexico, with the help of his brothers, so that he may help his son provide for his disabled grandso n . ” 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 seriou s o f f enses and three deportations withi n a 19-year period, such a promise lacked

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

credibility. The district court properly emphasized his c r iminal 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 sh o u l d have received significant weight, that it gives significant weight to an irrelevant or improper factor, or that it represents a c l e a r e r r o r in balancing the § 3553(a) factors. See United States v. Smith , 440 F.3d 704, 708 (5th Cir. 200 6). The district court did n ot 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