United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 5, 2007
Charles R. Fulbruge III
Clerk
No. 05-40929
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESUS DAVID SOSA-IBARRA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-2123-3
--------------------
Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
Jesus David Sosa-Ibarra appeals the 24-month sentence that
resulted from his guilty-plea conviction for transporting illegal
aliens for private financial gain in violation of 8 U.S.C.
§ 1324(a)(1)(B) and 18 U.S.C. § 2. He argues that the district
court erred by failing to articulate fact-specific reasons for
its nonguideline sentence. Sosa-Ibarra also argues that the
court gave insufficient consideration or weight to the advisory
Sentencing Guidelines and the statutory sentencing factors.
*
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this opinion should not be published and is not precedent except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.
No. 05-40929
-2-
The district court “properly calculated the applicable
guideline range” for Sosa-Ibarra’s offense and “carefully
articulated permissible reasons for its variance.” See United
States v. Smith, 440 F.3d 704, 706-07 (5th Cir. 2006). The court
implicitly analyzed the “history and characteristics of the
defendant” factor when discussing Sosa-Ibarra’s specific facts,
namely that Sosa-Ibarra has previously been convicted for an
alien smuggling offense, that he was now in the “business” of
assisting undocumented aliens in entering the United States, and
that he was a leader in the offense. By adopting the PSR in its
Statement of Reasons, the court also showed that it considered
the fact that Sosa-Ibarra committed the instant offense just six
months after completing probation for a similar offense. The
court also considered the need for Sosa-Ibarra’s sentence to
reflect the seriousness of the offense, promote respect for the
law, and provide a just punishment when it expressed concern that
the 10 to 16 month guideline range did not reflect the
“seriousness” of the offense, considering that Sosa-Ibarra’s
involvement in alien smuggling had escalated since the first
offense. Further, the court’s warning to Sosa-Ibarra that he
could face more time if he returned to the United States after
deportation reflected a concern that the sentence encourage
deterrence and protect the public from further alien smuggling by
Sosa-Ibarra. Because the court committed no legal error in the
sentencing procedure, the sentence must be given great deference.
See id.
No. 05-40929
-3-
Additionally, the court’s fact-specific findings in support
of the upward variance sufficiently demonstrate that the
substance of the sentence is reasonable under 18 U.S.C. §
3553(a). See id. at 707. The court articulated concern that the
10 to 16 month guideline range did not reflect the “seriousness”
of the offense, considering that Sosa-Ibarra’s involvement in
alien smuggling had escalated and become more sophisticated since
his first smuggling offense. The court’s analysis of the facts
supporting the “seriousness” reflects a balancing of the §
3553(a) factors, namely the circumstances of the offense, the
history and characteristics of the defendant, and the need for
the sentence to reflect certain factors. See § 3553(a). The
nonguideline sentence therefore reasonably reflects the requisite
consideration of the § 3553(a) factors, gives significant weight
to relevant and proper factors, and demonstrates a balancing of
the sentencing factors that does not represent “a clear error of
judgment.” See Smith, 440 F.3d at 708. The district court
therefore did not abuse its discretion in imposing a nonguideline
sentence. See id.
AFFIRMED.