United States v. Sauceda-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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
January 9, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-40260
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERIK SAUCEDA-MENDOZA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:05-CR-1056-1
--------------------
Before REAVLEY, WIENER and DENNIS, Circuit Judges.
PER CURIAM:*
Erik Sauceda-Mendoza appeals the sentence he received
following his plea of guilty to one count of transporting
undocumented aliens, a violation of 8 U.S.C. § 1324. The
district court imposed a sentence of 40 months, above the
advisory guidelines sentencing range of 18 to 24 months, on the
basis that Sauceda-Mendoza transported two aliens in a luggage
carrier strapped to the roof of the vehicle.
As a threshold matter, the Government argues that Sauceda-
Mendoza failed to preserve error and, thus, review should be for

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plain error only. By making arguments to the district court in
response to the court’s statement that it was considering
imposing a sentence above the guidelines range, Sauceda-Mendoza
likely preserved any objection to the reasonableness of the
sentence. However, we need not reach that issue because, under
any standard, the sentence passes muster.
Although both parties repeatedly refer to the sentence as
involving an upward departure, it is apparent from the Statement
of Reasons that the court imposed a non-guidelines sentence,
i.e., one outside the advisory guidelines system. Such a
sentence does not involve a departure, which derives from the
Guidelines and is, therefore, not considered a guidelines
sentence, but a variance or deviation from the Guidelines based
on the 18 U.S.C. § 3553(a) factors. See United States v. Smith,
440 F.3d 704, 707 (5th Cir. 2006). Accordingly, we review for
reasonableness and, because the sentence involved an upward
deviation, we apply the three-pronged test set out in Smith and
United States v. Duhon, 440 F.3d 711, 715 (5th Cir. 2006).
The court adequately explained at the sentencing hearing and
in its Statement of Reasons that a sentence above the advisory
range was necessary to reflect the seriousness of the offense and
the danger to the two women of being placed in a luggage carrier.
Although, as Sauceda-Mendoza points out, the danger to the aliens
was addressed by a sentencing enhancement for reckless
endangerment under U.S.S.G. § 2L1.1(b)(5), the court plainly

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found that the specific danger involved in this case was
particularly egregious. Accordingly, the sentence imposed did
not (1) fail to account for a factor that should have received
significant weight, (2) give significant weight to an irrelevant
or improper factor, or (3) represent a clear error of judgment in
balancing the sentencing factors. See Duhon, 440 F.3d at 715.
As the court properly calculated the applicable guidelines range
and articulated reasons for its variance, the court committed no
legal error; therefore, the sentence must be given deference.
See Smith, 440 F.3d at 710. The degree of the upward variance,
from 24 to 40 months, was not unreasonable. See id. (affirming
upward deviation from 27 to 60 months).
For the foregoing reasons, the judgment of the district
court is AFFIRMED.

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