United States v. J. Alvarez Lara , 427 F. App'x 293 ( 2011 )

Case: 10-20495 Document: 00511495066 Page: 1 Date Filed: 06/01/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 1, 2011
No. 10-20495
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
J. JESUS ALVAREZ LARA, also known as Jesus Lara Alvarez, also known as
Jesus Santanna, also known as Jesus Alvarez Lara,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:10-CR-96-1
Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
J. Jesus Alvarez Lara (Alvarez) pleaded guilty to illegal reentry by a
previously deported alien and was sentenced to 46 months of imprisonment and
three years of supervised release. He now appeals his sentence, which was
based on a upward departure under U.S.S.G. § 4A1.3, arguing that the facts did
not warrant an upward departure and that the sentence was greater than
necessary to achieve the 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-20495 Document: 00511495066 Page: 2 Date Filed: 06/01/2011
No. 10-20495
We review Alvarez’s sentence for reasonableness. Gall v. United States,
552 U.S. 38, 51 (2007); United States v. Cisneros-Gutierrez, 517 F.3d 751, 764
(5th Cir. 2008). Reasonableness review, in the context of a guidelines departure,
requires this court to evaluate both the decision to depart upward and the extent
of the departure for an abuse of discretion. 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 for the departure advance the objectives of § 3553(a) and are
justified by the particular facts of the case. Id.
Given Alvarez’s extensive criminal record and the lack of deterrent effect
from prior lenient sentences, the district court did not abuse its discretion by
upwardly departing based upon its finding that Alvarez’s criminal history under-
represented the seriousness of his criminal history and the likelihood that he
would recidivate. See § 3553(a); Zuniga-Peralta, 442 F.3d at 347; United States
v. Brantley, 537 F.3d 347, 349-50 (5th Cir. 2008); United States v. Simkanin, 420
F.3d 397, 418 n.24 (5th Cir. 2005); United States v. Pennington, 9 F.3d 1116,
1118 (5th Cir. 1993). Additionally, Alvarez has not shown that the district court
erred in determining the extent of the departure. See Gall, 552 U.S. at 51;
Zuniga-Peralta, 442 F.3d at 347-48. Following the direction of § 4A1.3(a)(4)(B),
because Alvarez was already in the highest criminal history category, the
district court moved incrementally down the Sentencing Table from a total
offense level of ten to an offense level of 14; a total offense level of 14 with a
criminal history category of VI yielded a new advisory sentencing guidelines
range of 37 to 46 months of imprisonment. See U.S.S.G. Ch.5, Pt. A, Sentencing
Table. The district court determined that 46 months was the most appropriate
and reasonable sentence for Alvarez. This 46-month sentence was 16 months
greater than the high-end of the guidelines sentence range applicable without
the upward departure. See U.S.S.G. Ch. 5, Pt. A, Sentencing Table. This court
has affirmed similar and more substantial departures. See Zuniga-Peralta, 442
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No. 10-20495
F.3d at 346-48; United States v. Lee, 358 F.3d 315, 328-29 (5th Cir. 2004); United
States v. McKenzie, 991 F.2d 203, 205 n.7, 206 n.8 (5th Cir. 1993).
Accordingly, the district court’s judgment is AFFIRMED.
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