Case: 09-50548 Document: 00511018709 Page: 1 Date Filed: 02/02/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 2, 2010
No. 09-50548
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JUAN ALBERTO RANGEL-TAPIA,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:09-CR-14-1
Before JOLLY, BARKSDALE, and CLEMENT, Circuit Judges.
PER CURIAM:*
Juan Alberto Rangel-Tapia appeals his sentence of 60-months’
imprisonment, following his guilty-plea conviction to illegal reentry into the
United States. According to Rangel, and consistent with his objection in district
court when this sentence was imposed, the sentence, which exceeded the
advisory guidelines range, is greater than necessary to satisfy the sentencing
goals of 18 U.S.C. § 3553(a).
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 09-50548 Document: 00511018709 Page: 2 Date Filed: 02/02/2010
No. 09-50548
Although post-Booker (2005), the Guidelines are advisory only, and an
ultimate sentence is reviewed for reasonableness under an abuse-of-discretion
standard, the district court must still properly calculate the guideline-sentencing
range for use in deciding on the sentence to impose. Gall v. United States, 552
U.S. 38, 51 (2007). Accordingly, we first determine whether any significant
procedural error occurred. Id.
If the sentence is procedurally sound, we consider whether it was
substantively reasonable under “the totality of the circumstances, including the
extent of any variance from the Guidelines range”. Id. When a sentence is
outside that range, our court gives deference to the sentencing court’s decision
that the § 3553(a) factors justify the variance. Id.
According to Rangel, the district court gave undue weight to certain
§ 3553(a) factors and failed to give adequate consideration to others. He
maintains that the non-guidelines sentence overstated the seriousness of his
illegal-reentry offense and the seriousness of his criminal history. Rangel also
contends: he reentered the country in order to reunite with his family; and, the
court failed to consider his personal history and characteristics, including his
family ties to the United States, his steady employment record, and his problems
with alcoholism.
The court stated that Rangel had previously been removed from the
United States on four occasions; that he had used several aliases and false birth
dates; and that he was in the highest possible criminal history category, despite
the fact that several of his prior convictions had not been considered. The court
also referred to Rangel as a “menace” because of his steady criminal history and
2
Case: 09-50548 Document: 00511018709 Page: 3 Date Filed: 02/02/2010
No. 09-50548
noted that he did not provide much assistance to his family because of his
actions.
The court’s oral and written reasons for Rangel’s sentence show that it was
particularly concerned with deterrence as well as the need to impose a just
punishment, to promote respect for the law, and to protect the public. All of
these are proper factors to consider when imposing a sentence. See § 3553(a).
In sum, the district court did not abuse its discretion. The sentence
imposed “was reasonable under the totality of the relevant statutory factors”.
United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008) (quotation marks
omitted); see also United States v. Lopez-Velasquez, 526 F.3d 804, 807 (5th Cir.)
(upholding an upward variance based on the nature and characteristics of the
defendant and his criminal history), cert. denied, 129 S. Ct. 625 (2008).
AFFIRMED.
3