Case: 10-40639 Document: 00511480084 Page: 1 Date Filed: 05/17/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 17, 2011
No. 10-40639
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
MARVIN CORTEZ ESTRADA, also known as Marvin Cortes Estrada,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:10-CR-616-1
Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Marvin Cortez Estrada (Cortez) pled guilty to reentering the United States
illegally after deportation. The district court varied upward from the Sentencing
Guidelines imprisonment range in sentencing Cortez to a 70-month term of
imprisonment and to a three-year period of supervised release. Cortez gave
timely notice of his appeal.
Cortez contends that the district court abused its discretion in failing to
explain adequately the extent of its upward variance from the Sentencing
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-40639 Document: 00511480084 Page: 2 Date Filed: 05/17/2011
No. 10-40639
Guidelines imprisonment range. Cortez contends also that the sentence was
substantively unreasonable because the district court failed to consider the
mitigating circumstance of Cortez’s history of alcohol and drug abuse, and
because the length of the sentence was greater than necessary to effectuate the
purposes of sentencing.
After United States v. Booker, 543 U.S. 220 (2005), sentences are reviewed
for procedural error and substantive reasonableness under an abuse of discretion
standard. Gall v. United States, 552 U.S. 38, 50-51 (2007).
The district court did not fail to consider Cortez’s drug and alcohol abuse;
rather, it explained that it did not regard such abuse to be a mitigating factor.
Because of Cortez’s mendacity and extensive and violent criminal history, the
court stated, a non-Guidelines sentence was necessary to reflect the seriousness
of the offense, to promote respect for the law, to deter future criminal conduct,
to protect the public from further crimes, and to provide just punishment for the
offense. The district court’s reasons were adequate. See United States v. Smith,
440 F.3d 704, 707 (5th Cir. 2006). Unlike United States v. Kirkpatrick, 589 F.3d
414, 415-16 (7th Cir. 2009), cited by Cortez, the district court’s reasons were not
conclusional and do not indicate that the sentence was arbitrarily chosen.
While the variance in this case is significant, this court has affirmed
similar variances and departures. See, e.g., United States v. Brantley, 537 F.3d
347, 348-50 (5th Cir. 2008). There is no indication that the district court failed
to (1) “account for a factor that should have received significant weight,” (2) gave
“significant weight to an irrelevant or improper factor,” or (3) made “a clear error
of judgment in balancing the sentencing factors.” Smith, 440 F.3d at 708. The
sentence imposed “was reasonable under the totality of the relevant statutory
factors.” Brantley, 537 F.3d at 349 (internal quotation marks and citation
omitted). Because Cortez has shown no more than a disagreement with the
district court’s balancing of the Section 3553(a) factors, the judgment is
AFFIRMED.
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