IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 22, 2009
No. 09-50017
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v.
HUGO GONZALEZ-LAGUNA,
Defendant–Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:08-CR-1822-ALL
Before GARZA, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Hugo Gonzalez-Laguna appeals his 72-month sentence for illegally
reentering the United States following a previous deportation, in violation of
8 U.S.C. § 1326. He argues that the district court procedurally erred by failing
to explain adequately the non-Guidelines sentence. He argues that his sentence
was substantively unreasonable because the sentence was imposed arbitrarily,
without reference to the insufficiency of the Guidelines range, and because the
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-50017
district court failed to make factual findings to support its reliance on any of the
18 U.S.C. § 3553(a) factors.
This court reviews a district court’s sentencing decision for abuse of
discretion. Gall v. United States, 128 S. Ct. 586, 597 (2007); United States v.
Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). This court first
determines whether the district court committed any significant procedural
error, such as failing to explain adequately its decision to deviate from the
Guidelines range. Gall, 128 S. Ct. at 597. If there is no significant procedural
error, this court reviews the sentence for substantive reasonableness. Id.
Although Gonzalez-Laguna preserved his objection to the substantive
reasonableness of the sentence, he failed to object in the district court to the
district court’s explanation of the sentence. Plain error review therefore governs
this issue. See United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir.
2009), cert. denied, No. 08-11099, 2009 WL 1849974 (Oct. 5, 2009). To show
plain error, the appellant must show a forfeited error that is clear or obvious and
that affects his substantial rights. Puckett v. United States, 129 S. Ct. 1423,
1429 (2009).
The sentencing court must state “the reasons for its imposition of the
particular sentence.” 18 U.S.C. § 3553(c). “The sentencing judge should set
forth enough to satisfy the appellate court that he has considered the parties’
arguments and has a reasoned basis for exercising his own legal decisionmaking
authority.” Rita v. United States, 551 U.S. 338, 356 (2007).
The district court’s explanation reflects that the court expressly considered
the § 3553(a) factors. The district court’s statements that Gonzalez-Laguna is
“dangerous coming back to the [United] States” and that “you and I know that
once you serve this time, you are going to try to find a way to come back,” reflect
that the district court considered Gonzalez-Laguna’s history of violent criminal
behavior and repeated illegal reentry into the United States, as noted by the
Government at sentencing and in the PSR, as well as the need to protect the
2
No. 09-50017
public. See 18 U.S.C. § 3553(a)(1)-(2)(C). The district court also explicitly stated
that the sentence was calculated to deter Gonzalez-Laguna from future criminal
activity and to ensure that Gonzalez-Laguna understood the seriousness of his
offense. Gonzalez-Laguna has not shown that the district court committed clear
or obvious error in its explanation of the non-Guidelines sentence.
Gonzalez-Laguna’s sentence is also substantively reasonable. In light of
Gonzalez-Laguna’s long history of violent crimes and his continued flouting of
the law by returning to the United States despite prior removals, he has not
shown that the district court abused its discretion in sentencing him to 72
months in prison. Further, this court has upheld variances considerably greater
than the increase in Gonzalez-Laguna’s sentence. See United States v. Brantley,
537 F.3d 347, 348-50 (5th Cir. 2008) (affirming a variance from the Guidelines
maximum of 51 months to a sentence of 180 months); United States v. Saldana,
427 F.3d 298, 312-13 (5th Cir. 2005) (upholding the imposition of consecutive
sentences that effectually quadrupled the maximum Guidelines sentence);
United States v. Smith, 417 F.3d 483, 492-93 (5th Cir. 2005) (affirming an
increase from the Guidelines maximum of 41 months to a sentence of 120
months).
Gonzalez-Laguna has not shown that the district court imposed an
unreasonable sentence.
* * *
Accordingly, the district court’s judgment is AFFIRMED.
3