IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 28, 2009
No. 08-40808
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JUAN ANDRES SOTO,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:08-CR-351-1
Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Juan Andres Soto appeals the 45-month sentence imposed following his
guilty plea conviction for transporting illegal aliens for private financial gain in
violation of 8 U.S.C. § 1324 (1)(A)(ii). Soto’s 45-month sentence was above the
advisory guidelines sentencing range of 21 to 27 months.
Although Soto requested that the district court “consider the least possible
time,” he did not raise any objection to the court’s explanation of his sentence or
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-40808
to the procedural reasonableness of the sentence, which are the very issues he
raises on appeal. Accordingly, review of Soto’s claims is for plain error. See
United States v. Lopez-Velasquez, 526 F.3d 804, 806 (5th Cir.), cert. denied, 129
S. Ct. 625 (2008); United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th
Cir. 2009), petition for cert. filed, (June 24, 2009) (08-11099). To show plain
error, Soto must show a forfeited error that is clear or obvious and that affects
his substantial rights. See Puckett v. United States, 129 S. Ct. 1423, 1429 (2009).
If he makes such a showing, this court has the discretion to correct the error but
will do so only if the error seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Id.
We generally review sentences for reasonableness in light of the
sentencing factors of § 3553(a). United States v. Booker, 543 U.S. 220, 261
(2005). We first determine whether the sentence is procedurally unreasonable
due to a procedural error “such as failing to calculate (or improperly calculating)
the Guidelines range, treating the Guidelines as mandatory, failing to consider
the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or
failing to adequately explain the chosen sentence - including an explanation for
any deviation from the Guidelines range.” Gall v. United States, 128 S. Ct. 586,
597 (2007). If the sentence is procedurally reasonable, we consider whether it
is substantively reasonable under “the totality of the circumstances, including
the extent of any variance from the Guidelines range.” Id. When a sentence is
outside the Guidelines, we give deference to the sentencing court’s decision that
the § 3553(a) factors justify the variance. Id.
Soto contends that the sentence is procedurally unreasonable because the
district court did not consider a departure under U.S.S.G. § 4A1.3 before
imposing a non-guidelines variance. There is no support for his contention. In
United States v. Mejia-Huerta, 480 F.3d 713, 723 (5th Cir. 2007), we rejected the
defendants’ contentions that their above-Guidelines sentences were
unreasonable because the court did not follow § 4A1.3 of the Guidelines. We
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No. 08-40808
noted that “post-Booker, a sentencing court may impose a non-Guidelines
sentence, i.e., a ‘variance’, but not a ‘departure,’ if it calculates the proper
sentencing range and references the broad array of factors set forth in § 3553(a).”
Id. at 721. Mejia-Huerta also rejected the proposition that a sentencing court’s
“failure to conduct the calculus of § 4A1.3 renders a non-Guidelines sentence per
se unreasonable.” Mejia-Huerta, 480 F.3d at 723.
Soto also contends that the sentence is procedurally unreasonable because
the district court gave an inadequate explanation of the reasons for the variance
and failed to properly balance the factors set forth in 18 U.S.C. § 3553(a).
The record reflects that the district court considered Soto’s history and
characteristics, the need to promote respect for the law and to provide deterrence
against future criminal conduct and noted those factors in its Statement of
Reasons. The record reflects that the district court did not give improper or
undue weight to Soto’s criminal history or plainly err in concluding that a
sentence of 21 to 27 months of imprisonment would not satisfy the sentencing
objections of § 3553(a).
Soto has failed to show that his sentence is procedurally unreasonable, and
he does not contend that his sentence is substantively unreasonable. See Gall,
128 S. Ct. at 597. Accordingly, the district court’s judgment is AFFIRMED.
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