United States v. Lopez-Portillo De Cruz ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 17, 2009
No. 08-40852
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SUSANA LOPEZ-PORTILLO DE CRUZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
No. 5:08-CR-42-2
Before SMITH, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Susana Lopez-Portillo de Cruz appeals the 50-month sentence imposed
after she pleaded guilty of conspiring with her husband and others to transport
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-40852
and harbor illegal aliens for financial gain in violation of 8 U.S.C. § 1324(a)(1)(A)
and (B). She argues that the district court erred by sentencing her above the ap-
plicable guideline range of 33-41 months.
Under United States v. Booker, 543 U.S. 220 (2005), sentences are re-
viewed for reasonableness in light of the sentencing factors in 18 U.S.C.
§ 3553(a). United States v. Mares, 402 F.3d 511, 519-20 (5th Cir. 2005). If, as
in this case, a defendant does not challenge the procedural correctness of the
sentence, this court may proceed to an examination of the substantive reasona-
bleness of the sentence, see United States v. Brantley, 537 F.3d 347, 349 (5th Cir.
2008), under an abuse-of-discretion standard, see Gall v. United States, 128 S.
Ct. 586, 596-97 (2007). Lopez-Portillo de Cruz seems to concede that, because
she did not object to the reasonableness of her sentence in the district court, re-
view should be for plain error only. See United States v. Peltier, 505 F.3d 389,
390-92 (5th Cir. 2007), cert. denied, 128 S. Ct. 2959 (2008). Under either stan-
dard of review, Lopez-Portillo de Cruz is not entitled to relief. See United States
v. Rodriguez, 523 F.3d 519, 525 (5th Cir.), cert. denied, 129 S. Ct. 624 (2008).
The district court imposed a non-guideline sentence above the guideline
range. The selection of a non-guideline sentence is within that court’s discretion.
Gall, 128 S. Ct. at 597. This court “must give due deference to the district
court’s decision that the § 3553(a) factors, on a whole, justify the extent of the
variance.” Id. “A non-Guideline sentence unreasonably fails to reflect the statu-
tory sentencing factors where it (1) does not account for a factor that should have
received significant weight, (2) gives significant weight to an irrelevant or im-
proper factor, or (3) represents a clear error of judgment in balancing the sen-
tencing factors.” United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006).
The district court determined that the sentence imposed was reasonable
based on the length and scope of the alien smuggling conspiracy and the fact
that Lopez-Portillo de Cruz had abused her husband’s position as a border patrol
agent to further the objectives of the conspiracy. These are proper sentencing
2
No. 08-40852
considerations. See § 3553(a)(1), (2). Further, the upward variance from the
guideline maximum of 41 months to a sentence of 50 months is not unreason-
able. This court has upheld considerably greater variences. See Brantley, 537
F.3d at 348-50 (variance from the guideline maximum of 51 months to a sen-
tence of 180 months); United States v. Herrera-Garduno, 519 F.3d 526, 530-32
(5th Cir. 2008) (variance from the guideline maximum of 27 months to a sen-
tence of 60 months); Smith, 440 F.3d at 708-10 (same).
Lopez-Portillo de Cruz has not shown that the court imposed an unreason-
able sentence. See Gall, 128 S. Ct. at 596-97. The judgment is AFFIRMED.
3