United States v. Ocampo-Mejia

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 13, 2009
No. 08-10796
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
FRANCISCO OCAMPO-MEJIA
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:06-CR-251-ALL
Before JONES, Chief Judge, and STEWART and OWEN, Circuit Judges.
PER CURIAM:*
Francisco Ocampo-Mejia (Ocampo) appeals the sentence imposed by the
district court following his guilty plea conviction for one count of illegal reentry
after deportation in violation of 8 U.S.C. § 1326(a). Following a hearing, the
district court varied from the guideline sentencing range of 33-41 months and
sentenced Ocampo to 75 months in prison followed by three years of supervised
release. Ocampo objected to the reasonableness of the sentence and filed a
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-10796
timely notice of appeal. On appeal, Ocampo argues that his sentence is
substantively unreasonable because it does not account for a factor that should
have received significant weight (his cultural assimilation), gives significant
weight to an improper factor (his prior arrests), and represents a clear error of
judgment in balancing the sentencing factors.
Following United States v. Booker, 543 U.S. 220 (2005), sentences are
reviewed for reasonableness in light of the sentencing factors in 18 U.S.C.
§ 3553(a). See United States v. Mares, 402 F.3d 511, 518-19 (5th Cir. 2005). In
conducting a reasonableness review, an appellate court must first determine
whether the district court committed any significant procedural error. Gall v.
United States, 128 S. Ct. 586, 597 (2007). If there is no procedural error, this
court then “consider[s] the substantive reasonableness of the sentence imposed
under an abuse-of-discretion standard.” Id. If the sentence is outside the
guidelines range, this court “may consider the extent of the deviation, but 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.
The district court herein committed no procedural errors. The court
properly calculated Ocampo’s guidelines sentencing range, considered the
§ 3553(a) sentencing factors, considered no clearly erroneous facts, and
adequately explained the reasons for the sentence imposed. See Gall, 128 S. Ct.
at 597. Evidence of Ocampo’s cultural assimilation was considered at
sentencing. This court, however, has held that “[w]hile cultural assimilation
may be considered as a mitigating factor . . . there is no requirement that a
sentencing court must accord it dispositive weight.” United States v.
Lopez-Velasquez, 526 F.3d 804, 807 (5th Cir.), cert. denied, 129 S. Ct. 625 (2008)
(internal citation omitted, emphasis in original). Thus, the district court did not
err in balancing Ocampo’s cultural assimilation against other § 3553(a) factors.
Regarding the court’s consideration of Ocampo’s prior arrests, criminal
conduct not resulting in a conviction may be considered by the sentencing judge.
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No. 08-10796
Id. As the district court did not base Ocampo’s sentence on his arrest record
“standing alone,” the court did not err in relying on Ocampo’s arrests, in part,
as a reason for the sentence variance. See id.
Finally, the district court articulated numerous grounds under § 3553(a)
for the upward variance, the non-Guidelines sentence was less than the
statutory maximum sentence of twenty years under § 1326(a) and (b)(2), and the
extent of the variance is consistent with other sentences affirmed by this court.
See, e.g., United States v. Smith, 440 F.3d 704, 705-06 (5th Cir. 2006); United
States v. Mejia-Huerta, 480 F.3d 713, 716-20, (5th Cir. 2007), cert. denied,
128 S. Ct. 2954 (2008). In light of the foregoing, we find that the district court
did not abuse its discretion in imposing Ocampo’s sentence.
Accordingly, the judgment of the district court is AFFIRMED.
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