IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 29, 2009
No. 08-50734
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
FRANCISCO JAVIER SOTO-MARTINEZ, also known as Javier Soto, also
known as Alberto Sanchez, also known as Javier Martinez-Ramirez, also known
as Antonio Soto Martinez, also known as Alberto Cantara, also known as Alberto
Alcantara Sanchez, also known as Fernando Soto Sanchez, also known as
Alberto Allandafe Sanchez, also known as Albeto Alcandara-Sanchez
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:08-CR-539-ALL
Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Francisco Javier Soto-Martinez appeals his sentence following his guilty
plea conviction for illegal reentry into the United States. Soto-Martinez was
sentenced to 120 months of imprisonment and three years of nonreporting
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-50734
supervised release. This sentence was above his sentencing guidelines range of
46 to 57 months of imprisonment.
Soto-Martinez contends that his sentence should be vacated as
substantively unreasonable because it was greater than necessary to meet the
requirements of 18 U.S.C. § 3553(a). He argues that the district court abused
its discretion by giving disproportionate weight to the need to afford adequate
deterrence from crime and that the district court erred in reasoning that a 120-
month sentence was necessary because he had not been deterred from reentering
the United States after serving nearly 10 years of imprisonment for attempted
murder. He also argues that a within-guidelines sentence was sufficient to
provide just punishment for the offense, promote respect for the law, and reflect
the seriousness of the offense. Citing United States v. Gomez-Herrera, 523 F.3d
554, 556, 565-66 (5th Cir. 2008), he argues that the district court failed to
consider the need to avoid unwarranted sentence disparities among defendants
with similar records who have been found guilty of similar conduct.
After United States v. Booker, 543 U.S. 220 (2005), a sentence is reviewed
for abuse of discretion. Gall v. United States, 128 S. Ct. 586, 594 (5th Cir. 2007).
This court “‘first ensure[s] that the district court committed no significant
procedural error’ and ‘then consider[s] the substantive reasonableness of the
sentence imposed.’” United States v. Herrera-Garduno, 519 F.3d 526, 529 (5th
Cir. 2008) (quoting Gall, 128 S. Ct. at 597).
“[A] district court need not recite each of the § 3553(a) factors and explain
its applicability.” Herrera-Garduno, 519 F.3d at 531; accord United States v.
Smith, 440 F.3d 704, 707 (5th Cir. 2006). At sentencing, the district court stated
that Soto-Martinez had an extensive criminal history and lacked respect for the
law, Soto-Martinez was “a dangerous man” in light of his criminal history, and
the sentence was necessary to deter Soto-Martinez from breaking the law in the
future. Soto-Martinez’s criminal history was one of the factors that the district
court was permitted to consider in imposing an above-guidelines sentence. See
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No. 08-50734
Herrera-Garduno, 519 F.3d at 531; Smith, 440 F.3d at 709. The district court’s
statements reflect consideration of the need to afford adequate deterrence from
crime, the need to promote respect for the law, Soto-Martinez’s nature and
characteristics, and the need to protect the public from further crimes by Soto-
Martinez. See § 3553(a). Soto-Martinez has not shown that the district court
abused its discretion in sentencing him to 120 months of imprisonment. See
Herrera-Garduno, 519 F.3d at 531; Smith, 440 F.3d at 709 (5th Cir. 2006). Soto-
Martinez’s citation to “one case in which a lower sentence was imposed clearly
cannot establish an unwarranted disparity under [] § 3553(a)(6).” United States
v. Sanchez-Ramirez, 497 F.3d 531, 536 n.4 (5th Cir. 2007).
AFFIRMED.
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