IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-30335

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

TOMAS R. SEGUNDO-ESPINOZA,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 2:10-CR-242-1

Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.

PER CURIAM:*

Tomas R. Segundo-Espinoza (Segundo) appeals the 72-month nonguidelines sentence he received after he pleaded guilty to illegal reentry, in

violation of 8 U.S.C. § 1326. Segundo argues that his sentence, above the

guidelines range of 46 to 57 months, is procedurally and substantively

unreasonable.

Sentences are reviewed first for procedural error and then for substantive

reasonableness, which is reviewed for an abuse of discretion. Gall v. United

United States Court of Appeals

Fifth Circuit

F I L E D

November 9, 2011

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. 11-30335

States, 552 U.S. 38, 51 (2007). Segundo’s objection to the district court’s upward

variance did not preserveSegundo’s challenges to the procedural reasonableness

of his sentence, and review is for plain error. See United States v.

Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009). 

Segundo’s argument that the district court’s use of his prior robbery

conviction in its calculation of the guidelines range was problematic because it

both increased his criminal history score and enhanced his base offense level

fails. See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009). 

Likewise, given his criminal history, Segundo’s arguments regarding cultural

assimilation are unavailing. See U.S.S.G. § 2L1.2, comment. (n.8); United States

v. Rodriguez-Montelongo, 263 F.3d 429, 433 34 (5th Cir. 2001) fails. The district

court’s lengthy explanation for its sentence indicates that the court considered

the applicable 18 U.S.C. § 3553(a) factors. See § 3553(a)(1), (a)(2), and (a)(6);

United States v. Gutierrez, 635 F.3d 148, 153 (5th Cir. 2011). Although Segundo

contends that the court focused on irrelevant factors, including his relationship

with the mother of his children, whether they received public assistance, and the

public’s views of immigration, the court indicated it was not basing punishment

on these facts and cited other factors in support of its sentence, including

Segundo’s criminal history and numerous prior removals. Segundo fails to show

any plain procedural error. See Puckett v. United States, 129 S. Ct. 1423, 1429

(2009).

Segundo also fails to show that the district court’s upward variance to 72

months was substantively unreasonable. See Gall, 552 U.S. at 51. Although

cultural assimilation can be a reason for the district to vary, nothing requires

the district court to give it more weight than other factors. See United States v.

Lopez-Velasquez, 526 F.3d 804, 807 (5th Cir. 2009). Segundo’s argument that

district court improperly gave significant weight to his robbery conviction is

unavailing. See United States v. Herrera-Garduno, 519 F.3d 526, 531 (5th Cir.

2008). Segundo’s unwarranted disparity argument based on the sentence given

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another illegal reentry defendant on the same day Segundo was sentenced fails,

as the record does not indicate that he and the other defendant had similar 

records. See § 3553(a)(6). In short, the sentence did not unreasonably fail to

reflect the § 3553(a) sentencing factors. See United States v. Smith, 440 F.3d

704, 708 (5th Cir. 2006). 

Because Segundo does not challenge the extent of the district court’s

variance from the Guidelines, he has abandoned that issue. See United States

v. Scroggins, 599 F.3d 433, 446-47 (5th Cir.), cert. denied, 131 S. Ct. 158 (2010). 

Even if this issue were not deemed abandoned, this court has upheld variances

of similar or greater amounts in illegal reentry cases. See. e.g., Lopez-Velasquez,

526 F.3d at 805-07; Herrera-Garduno, 519 F.3d at 531-32.

AFFIRMED.

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