### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-41031 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. ADONYS MISAEL LOPEZ-MORENO, Defendant-Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 7:12-CR-679-1

Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges. PER CURIAM: * Adonys M isa e l L o p e z-Moreno appeals the s entence of 96 m onths of imprisonment imposed following his guilty-plea conviction of being found in the United States after a p rior deportation. 8 U .S.C. § 1326(a) and (b). Pursuant to Gall v. United States , 552 U.S. 38, 51 (2007), we engage in a b ifurcated analysis of the s entence. United States v. Delgado-Martinez , 564 F.3d 750, 752 ( 5th Cir. 2 0 0 9 )

. Under that standard, we f ir st examine whether the district court committed any proced u r a l errors, “such as failing t o calculate (or improperly U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D June 26, 2013 Ly l e W . Cayce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-41031 Document: 00512287934 Page: 1 Date Filed: 06/26/2013No. 12-41031

calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing t o adequately explain the c hosen sentence.” Gall , 5 52 U.S. at 51. If the district court’s d ecision is procedurally sound, w e then “consider the

s ub s t antiv e r e a s onableness of the sentenc e i m p o s e d u n d e r a n ab u s e - o f

- di s c r e ti o n standard, . . . tak[ing] into account the totality of the circumstances.” Id. Lopez-Moreno raises three procedural challenges to his sentence. He first contends that the district court based the sentence on an erroneous assumption that L opez-Mor e n o r e c e ived a sentence of 10 years’ p robation on a prior conviction for attempted sexual battery o f a minor because the state court determined that he was going to be deported and thus no longer a problem in the United States. T he first error resulted in a second and related error, LopezMoreno asserts, b ecau s e t h e district court refused to consider the mitigating facts he presented. Lopez-Moreno did not raise these issues in the district court and w e thus review only for plain error. See Puckett v. U nited States , 556 U.S. 129, 135 (2009). Lopez-Moreno f

ails to explain, much less show, h ow the district court’s suggested explanation for the prior sentence is a clearly erroneous fact or that it w as the basis of his sentence in the instant matter. The record indicates that the district court provi d e d n u m erous reasons for the s entence, from which recitation the above statement w as only a b r ief digression. Specifically, the district court n oted the serious nature of Lopez-Moreno’s prior convictions and the potential th at L op e z - M o r e no would commit future offenses. The district

c o u rt determined that Lopez-Moreno’s criminal history w as greatly underrepresented in light of the severity of his prior o f f e nses, the relatively light
pen a l t i e s f

o r those offenses, and the fact that several of the p rior convictions

were not counted in arriving at the a dvisory guidelines sentenci n g r a nge. Further, the district c ourt d etermined th at those prior sentences had failed to provide a deterrent to future c riminal conduct and concluded that Lopez-Moreno

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presented a danger to the public. As to the mitiga t i ng facts Lopez-Moreno offered in regard to his prior conviction for attempted sexual battery of a minor, which consisted of his own statement that there had b een n o evidence he committed the offense and that he had only pleaded guilty in order to be released from prison on a sentence of probat i o n , t h e district court indicated that it considered his statement but f ound the detailed records of the plea and conviction more credible than his denials o f guilt. See 1 8 U.S.C. § 3553(a) (setting forth the factors courts must consider in imposing sentences). In his third proced u r a l challenge to his sentence, which challenge he preserved, Lopez-Moreno contends that the district cour t f a i l e d to adequately explain the above-guidelines sentence. “ C ongress requires the s entencing court to state ‘the reasons for its imposition of the particular sentence.’” U nited States

v. Mondragon-Santiago , 564 F.3d 357, 362 (citation omitted) ( quoting § 3553(c)). While sentences within the Guidelines require “little explanation,” the district court must more thoroughly articulate its reasons when it i m p o ses a nonguidelines sentence. United States v. Gomez-Herrera , 523 F.3d 554, 564-65 (5th Cir. 2005); see also Rita v . U nited States , 551 U.S. 338, 357-59 (2007). The district court’s reasons “should be fact specific and consistent” with the § 3553(a) factors. United States v. Smith , 4 4 0 F .3d 7 04, 707 (5th C ir. 2006) (citation omitted). W e have held that there is no error if the sentencing record reveals the

reasons for the sentence imposed and permits effective review by the a ppellate court. United States v . Key , 599 F.3d 4 69, 4 74-75 (5th Cir. 2010). As illustrated by the discussion above, the district court provided a detailed e xplanation of how it arrived at the sentence and its analysis of the sentencing factors o f § 3553(a). Because the district c ourt sufficiently articulated its reasons for imposing the sentence, Lopez-Moreno has shown no error. See Key , 599 F.3d at 474. As t o th e s ub s t a ntive r e a s o n ab l e n e s s o f hi s sentence, Lopez-Moreno argue s that the district court abused its discretion when it determined that a 96-month sentence was the least sentence necessary to fulfill the purposes o f sentencing.

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The Government argues that Lopez-Moreno’s assertion at sentencing that the sentence was “greater than necessary to a c h ieve the statutory purposes of 3553(a)” was insufficient to alert the court to t h e s p e cific reasonableness challenges he r aises in this c ourt and the claim s hould thus only be reviewed for plain error. We need not determine whether plain error review is appropriate, h o w e v e r , b e c a u s e L o p e z - M o r e n o ’ s a r gu m e n t s fail even un d e r t h e abuse-of-discretion standard. See U nited States v. Rodriguez , 5 23 F .3d 519, 525 (5th Cir. 2008). In reviewi n g a n o n - gui d e li n e s s entence for s ubstantive r e asonableness, we consider “the totality of the circumstances, including the extent of a ny variance from the Guidelines range.” United States v. Brantley , 537 F.3d 347, 349 (5th Cir. 2008) (internal quotation marks and citation omitted). We review whether the § 3553(a) factors s u pport the sentence a nd give deference to the district court’s determination that the § 3553(a) facto r s justify the variance. Id. “A sentence is unreasonable if it (1) does not account for a factor that s hould have received significant weight, (2) gives significant w eight t o an i r r e l e v ant or improper factor, or (3) represents a clear e rror of judgment in balancing the sentencing factors.” United S tates v. Peltier , 505 F.3d 389, 392 (5th Cir. 2007) (internal quotation marks and citation omitted). Before i mposing the sentence, the district court c onsidered the advisory guidelines range, the s tatutory penalties, the § 3 553(a) factors, the facts set forth in the PSR, Lopez-Moreno’s statement, a nd Lopez-Moreno’s arguments at sentencing (the Government made n o arguments). The district court made an individualized assessment and concluded that the guidelines r a nge did n ot adequately take into account the § 3 553(a) f actors, including the nature and circumstances of Lopez-Moreno’s offense in light of his criminal history, LopezMoreno’s history and c haracteristics, the n e e d t o af f o r d a d e qu at e d e t e rr e nce, and the need to protect the public. Although Lopez-Moreno’s 96-month sentence is 39 months greater than the t op of the 4 6-57-month guidelines r ange, we have

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upheld variances greater than the i ncrease to his sentence. See Brant ley , 537 F.3d at 348-50 (upholding a variance to concurrent terms o f 120 months and 180 months from a guidelines range of 41 to 51 months); United States v. Jones , 444 F.3d 430, 433, 4 41- 4 2 ( 5 t h C ir. 2006) (affirming an upward departure to 120 months from a guidelines range of 46 to 57 months); United States v. Smith , 417 F.3d 483, 492 (5th Cir. 2 005) (upholding departure to 120-month s entence where maximum of guidelines r ange was 41 months); United States v. Daughenbaugh , 4 9 F .3d 171, 174-75 (5th Cir. 1995) (affirming departure from guidelines maximum of 71 months to sentence of 240 months). Lopez-More n o ’s arguments do not show a clear error of j udgment on the district court’s part in balancing the § 3553(a) factors. See Peltier , 505 F.3d at 392. Instead, they constitut e a m ere disagreement with the district court’s weighing of those factors. Given the significant deference that is due to a district court’s consideration of the § 3553(a) factors and the district court’s reasons for its sentencing decision, Lopez-Moreno has not demonstrated that the s entence is substantively unreasonable. See Gall , 552 U.S. at 50-53; Brantley , 537 F.3d at 349. For these reasons, the judgment of the district court is AFFIRMED.

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