Case: 10-20642 Document: 00511570141 Page: 1 Date Filed: 08/12/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 12, 2011
No. 10-20642
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
RAUL MOSQUEDA, also known as Raul Ramirez Mosqueda,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:10-CR-254-1
Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
Raul Mosqueda appeals the sentence imposed after he pled guilty to being
in the United States illegally after deportation. The 24-month sentence was a
non-Guidelines variance above the advisory sentencing range of six to 12
months. Mosqueda contends that it was unreasonable.
A district court’s decision whether and by how much to deviate from the
advisory Guidelines range is entitled to deference in light of its superior position
to find facts, make credibility determinations, and gain “insights not conveyed
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-20642 Document: 00511570141 Page: 2 Date Filed: 08/12/2011
No. 10-20642
by the record.” Gall v. United States, 552 U.S. 38, 51 (2007) (quotation marks
and citation omitted). “The fact that the appellate court might reasonably have
concluded that a different sentence was appropriate is insufficient to justify
reversal of the district court.” Id.
Mosqueda asserts that the court improperly weighed the sentencing
factors of 18 U.S.C. § 3553(a) and his criminal history. By doing so, he implicitly
argues for de novo review and asks this court to reweigh the sentencing factors
in his favor. This is precisely contrary to the prescribed review for abuse of
discretion. See id. (mandating “due deference to the district court’s decision that
the § 3553(a) factors, on a whole, justify the extent of the variance”). The district
court cited fact-specific reasons for the sentence, and its reasons adequately
reflected consideration of the Section 3553(a) factors. Moreover, this court has
affirmed similar or greater degrees of variance. See, e.g., United States v.
Brantley, 537 F.3d 347, 348-50 (5th Cir. 2008) (upholding an upward variance
to 180 months from an advisory maximum of 51 months). Accordingly, the
sentence was reasonable and should not be disturbed. See id.
AFFIRMED.
2