United States v. Jose Villegas , 439 F. App'x 410 ( 2011 )

Case: 10-20823 Document: 00511587949 Page: 1 Date Filed: 08/30/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 30, 2011
No. 10-20823
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE VALDEZ VILLEGAS, Also Known as Beldo Villegas,
Also Known as Roy Salas, Also Known as Jose Valdez,
Also Known as Jose Valdez Villegas, Also Known as Roy Villa,
Also Known as Jose Vela, Also Known as Jose Valdez-Sepulveda,
Also Known as Jose Valdez Sepulveda, Also Known as Jose Carlos Valdez,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
No. 4:10-CR-427-1
Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-20823 Document: 00511587949 Page: 2 Date Filed: 08/30/2011
No. 10-20823
Jose Valdez Villegas appeals the 51-month sentence imposed following his
guilty plea conviction of illegal reentry after deportation. He argues that the
district court erred in upwardly departing from the advisory guideline range of
33-41 months based on the inadequacy of his criminal history category. He also
maintains that his sentence was procedurally and substantively unreasonable.
We review the sentence for reasonableness in light of the sentencing fac-
tors in 18 U.S.C. § 3553(a). Gall v. United States, 552 U.S. 38, 46 (2007). Rea-
sonableness review, in the context of a guideline departure, requires this court
to evaluate, for abuse of discretion, both the decision to depart upward and the
extent of the departure. United States v. Zuniga-Peralta, 442 F.3d 345, 347 (5th
Cir. 2006). An upward departure is not an abuse of discretion if the reasons
advance the objectives of § 3553(a) and are justified by the particular facts.
Given Valdez Villegas’s extensive criminal record and the lack of deterrent
effect from prior sentences, combined with the large number of recorded deporta-
tions that did not involve convictions for illegal reentry, the court did not abuse
its discretion by departing based on its finding that Valdez Villegas’s criminal
history category underrepresented the seriousness of his criminal history and
the likelihood of recidivism. See § 3553(a); Zuniga-Peralta, 442 F.3d at 347-48;
U.S.S.G. § 4A1.3(a)(1). Contrary to Valdez Villegas’s assertions, the district
court did not treat the guidelines as mandatory and did not ignore his assertion
that he was entitled to a lower sentence in light of the § 3553(a) factors.
Although he claims the district court failed to consider the sentencing disparities
among similarly situated defendants as required by § 3553(a)(6), Valdez Villegas
has failed to present evidence showing that his sentence differs from those
received by such defendants. See United States v. Smith, 440 F.3d 704, 709 (5th
Cir. 2006).
Valdez Villegas has not shown that his sentence is substantively unreason-
able or that the district court abused its discretion in determining the extent of
the departure. See United States v. Gutierrez, 635 F.3d 148, 154-55 (5th Cir.
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Case: 10-20823 Document: 00511587949 Page: 3 Date Filed: 08/30/2011
No. 10-20823
2011); United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008);
Zuniga-Peralta, 442 F.3d at 347-48. Additionally, his challenges to the constitu-
tionality of the guideline regime and his sentence are unavailing. See United
States v. Jasso, 634 F.3d 305, 309 (5th Cir.), cert. denied, 79 U.S.L.W. 3697 (U.S.
June 13, 2011) (No. 10-10401); United States. v. Brace, 145 F.3d 247, 255 (5th
Cir. 1998) (en banc). The judgment is AFFIRMED.
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