IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 28, 2007
No. 07-40334
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
GERARDO ROJO-MARTINEZ
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:06-CR-730-1
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Gerardo Rojo-Martinez appeals the sentence imposed following his plea of
guilty to illegally reentering the United States in violation of 8 U.S.C. § 1326(a)
and (b)(2). He argues that the district court acted unreasonably in upwardly
departing from the advisory guidelines range when imposing his sentence. He
also challenges the extent of the upward departure.
Because the district court departed upward pursuant to U.S.S.G. § 4A1.3,
Rojo-Martinez received a guidelines sentence rather than a non-guidelines
*
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should not be published and is not precedent except under the limited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. 07-40334
sentence. See United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006); United
States v. Torres-Aguilar, 352 F.3d 934, 935-36 (5th Cir. 2003). We review the
decision of the sentencing court to depart for abuse of discretion, ultimately
determining whether the sentence is unreasonable under 18 U.S.C. § 3553(a).
See United States v. Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir.), cert. denied,
126 S. Ct. 2954 (2006). We review the extent of the departure for plain error
because it was not objected to by Rojo-Martinez in the district court. See United
States v. Olano, 507 U.S. 725, 731-37 (1993).
The district court did not abuse its discretion in upwardly departing from
the recommended guidelines range. Its decision took into account the factors
identified in 18 U.S.C. § 3553(a) (2), including the need to promote respect for
the law, the need for adequate deterrence, and the need to protect the public
from future crimes by Rojo-Martinez. See § 4A1.3(a)(1). In addition, the
leniency of Rojo-Martinez’s prior sentences was an appropriate consideration by
the district court in considering the upward departure. See § 4A1.3, comment.
Moreover, Rojo-Martinez’s argument that any sentence of imprisonment would
have been an adequate deterrent to him committing future crimes is belied by
the fact that he served 30 days in prison during May and June of 2006 on a
probation revocation but illegally reentered the United States only months later,
in October 2006, in connection with the instant offense.
Rojo-Martinez’s sentence is nine months higher than the highest sentence
that could have been imposed under the advisory guidelines range. Based on the
record facts cited by the district court, the extent of the departure was within the
discretion of the district court. See Zuniga-Peralta, 442 F.3d at 347.
Accordingly, there was no plain error regarding the extent of the upward
departure, and Rojo-Martinez’s sentence is AFFIRMED.
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