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

No. 10-51038 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. JESUS MANUEL PAYAN-GLORIA, also known as Luis Jesus Contreras, also known as Antonio Payan, also known as Jesus Manuel Payan-Glorida, Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 3:09-CR-1939-1

Before KING, JOLLY, and GRAVES, Circuit Judges. PER CURIAM: * Jesus Manuel Payan-Gloria pleaded guilty to one count of attempted illegal reentry into the United States, a violati o n o f 8 U

. S .C. § 1326, and one count of false personation in immigration matters, a vi o l a t i on of 18 U.S.C. § 1546. He was sentenced o r i gi n a l l y t o concurrent terms of 41 months of imprisonment and three years of nonreporting supervised release. On appeal,

we granted Payan-Gloria’s unopposed motion to vacate h i s sentence and to 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 August 17, 20 11 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: 10-51038 Document: 00511574358 Page: 1 Date Filed: 08/17/2011No. 10-51038

remand for resentencing in light of Carachuri-Rosendo v. Holder , 130 S. Ct. 2577 (2010). On resentencing, the district court varied upward from Payan-Gloria’s guidelines range of 30 to 37 months o f i m p r i sonment and imposed the same sentences Payan-Gloria received originally. Payan-Gloria now appeals the sentences imposed on remand, contending that they were greater than necessary to satisfy the requirements of 18 U.S.C. § 3553(a). Af

t e r U n i t e d States v. Booker , 543 U.S. 220 (2005), a sentence is reviewed for reasonableness. Gall v. United States , 552 U.S. 38, 46 (2007). We first examine whet her the district court committed any significant procedural

err o r . Id. at 51. If the district court’s decision is procedurally sound, we will then “consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.” Id. Because Payan-Gloria does not contend that the district court committed procedural error, the only is s u e on appeal is the substantive reasonableness of his sentences. In imposing the sentences, the district cou r t n o t ed Payan-Gloria’s gang membership and extensive criminal history, which included f o u r p rior convictions for illegal r e e ntry into the United States, and indicated that there

was a need to deter Payan-Gloria from desiring to return to the United States. Payan-Gloria co n c e d e s that the factors considered by the district court were proper but contends that a within-guidelines sentence would have been sufficient, but not greater than n e c e s s a r y , to account for those factors. He contends that immigration offenses generally res ult in re latively high guidelines ranges for relatively minor conduct; his guidelines i m p ri s o n m e nt range was high relative to the seriousness of his offenses; and his guidelines range did not take into account the fact that his benign motivation for attempting to return to the United States was concern for his elderly mother. “[I]n applying abuse-of-discretion review, we ‘must give due deference to the district court’s decision that the § 3553(a) factors, on a whole, justi f y the extent of the variance.’” United S t a t e s v. Herrera-Garduno , 519 F.3d 526, 530
2 Case: 10-51038 Document: 00511574358 Page: 2 Date Filed: 08/17/2011No. 10-51038

(5th Cir. 2008) (quoting Gall , 552 U.S. at 5 1 )

. “ [ T] he sentencing judge is in a superi o r p o sition to find facts and judge their import under § 3553(a) with respect to a particular defendant.” United States v. Campos-Maldonado , 531 F.3d 337, 339 (5th C i r . 2008). The district court provided individualized,

c a s e-specific reasons for imposing the 41- m o nth s e nt e nc e s , an d P ay an - Gl o ri a h a s not shown that the sentences constituted an abuse of discretio n . See Herrera-Garduno , 519 F.3d at 530-32. AFFIRMED.

3 Case: 10-51038 Document: 00511574358 Page: 3 Date Filed: 08/17/2011