Summary Calendar UNITED STATES OF AMERICA v. Vicente Perez-Mendoza

* 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should not be published and is not precedent except under the limited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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 08-40114
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
VICENTE PEREZ-MENDOZA
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:07-CR-1176-ALL
Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Vicente Perez-Mendoza (Perez) pleaded guilty to illegal reentry after
deportation and was sentenced to a 48-month term of imprisonment. Perez
argues that his non-guidelines sentence is unreasonable because it is greater
than necessary to deter future criminal conduct. He contends that the sentencing
court did not provide adequate reasons to support the sentence.
United States Court of Appeals
Fifth Circuit
F I L E D
November 6, 2008
Charles R. Fulbruge III
Clerk

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No. 08-40114
2
The selection of a non-guidelines sentence is within the discretion of the
district court. Gall v. United States, 128 S. Ct. 586, 597 (2007). Following
United States v. Booker, 543 U.S. 220 (2005), we review sentences for
reasonableness in light of the sentencing factors in 18 U.S.C. § 3553(a). See
United States v. Mares, 402 F.3d 511, 519-20 (5th Cir. 2005). We consider
whether the district court committed any “significant procedural error, such as
failing to calculate (or improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing to adequately explain the
chosen sentence.” Gall 128 S. Ct. at 597. If no procedural error occurred, we
review for abuse of discretion the substantive reasonableness of the sentence
selected by the district court. Id.
In this case, the sentencing court imposed a sentence seven months higher
than the guidelines sentencing range. In support of its sentencing determination,
the court cited Perez’s recidivism, his criminal activities that had not resulted
in incarceration, and the fact that his criminal history category of VI did not
adequately represent his “extensive criminal history.” Perez presented
mitigating arguments, but the court ultimately concluded that they did not
outweigh his criminal history. See Rita v. United States, 127 S. Ct. 2456, 2469
(2007). We hold that Perez’s sentence was both procedurally and substantively
reasonable and thus within the discretion of the sentencing court. See Gall, 128
S. Ct. at 597; United States v. Brantley, 537 F.3d 347, 348-50 (5th Cir. 2008).
AFFIRMED.

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