United States v. Pardo-Luengas

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 17, 2008
No. 07-10595
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ALVARO PARDO-LUENGAS
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:06-CR-64-ALL
Before JONES, Chief Judge, and STEWART and OWEN, Circuit Judges.
PER CURIAM:*
Alvaro Pardo-Luengas (Pardo) appeals the 60-month sentence imposed
following his guilty plea conviction of illegal reentry after deportation. Pardo
argues that the district court erred by imposing an upward variance from the
guidelines sentencing range of 30-37 months of imprisonment without
calculating a departure under U.S.S.G. § 4A1.3. He contends that this was
procedurally unreasonable. Pardo also asserts that the sentence imposed was
substantively unreasonable because the district did not calculate the correct
guidelines range, given the omission of the § 4A1.3 departure; too much weight
*
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should not be published and is not precedent except under the limited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. 07-10595
was given to his prior DWI offense and the perception that he had received a
light sentence for it, as well as for his prior theft offenses; and, consequently, the
district court erred in balancing the sentencing factors under 18 U.S.C.
§ 3553(a).
Because the district court imposed a sentence variance, rather than a
departure, § 4A1.3 was inapplicable. See United States v. Mejia-Huerta, 480
F.3d 713, 723 (5th Cir. 2007), cert. denied, 128 S. Ct. 2954 (2008). As in Mejia-
Huerta, 480 F.3d at 723, the district court’s decision to impose a variance was
not based solely on the underrepresentation of Pardo’s criminal history. Rather,
the district court pointed to Pardo’s recidivism; the need to deter him and to
protect the public, as well as to promote respect for the law; the nature and
characteristics of the offense; and Pardo’s history and characteristics. These
findings are supported by the record, and there is no indication that the district
court’s decision was based disproportionately on Pardo’s prior DWI offense.
Thus, Pardo has not shown that the sentence imposed was unreasonable. See
Gall v. United States, 128 S. Ct. 586, 596-97 (2007); United States v. Mares, 402
F.3d 511, 519-20 (5th Cir. 2005).
Pardo argues that the district court erred under FED. R. CRIM. P. 32 and
Burns v. United States, 501 U.S. 129 (1991), by not providing advance notice of
its consideration of a sentence variance. He concedes that this issue is foreclosed
by our decision in Mejia-Huerta, 480 F.3d at 723. Additionally, the Supreme
Court recently confirmed that such notice is not required. Irizarry v. United
States, 128 S. Ct. 2198, 2202-04 (2008).
In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Pardo challenges
the constitutionality of 8 U.S.C. § 1326(b)’s treatment of prior felony and
aggravated felony convictions as sentencing factors rather than elements of the
offense that must be found by a jury. This argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). United States v.
2
No. 07-10595
Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), cert. denied, 128 S. Ct. 872
(2008).
AFFIRMED.
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