Case: 12-51146       Document: 00512373199         Page: 1     Date Filed: 09/13/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        September 13, 2013
                                     No. 12-51146
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

EFRAIN FRIAS-ALMANZA,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:12-CR-1670-1


Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Efrain Frias-Almanza appeals the sentence imposed
following his guilty plea conviction on one count of illegal reentry following a
previous deportation. He was sentenced to 40 months of imprisonment and
three years of supervised release. He contends that (1) the district court erred
by considering his arrests in imposing an upward departure and (2) his sentence
is substantively unreasonable.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                   No. 12-51146

      Sentences    are    reviewed    for       procedural   error   and    substantive
reasonableness. Gall v. United States, 

, 51 (2007). The district court
commits a significant procedural error by “selecting a sentence based on
erroneous factors.” United States v. Harris, 

, 229 (5th Cir. 2012).
Frias-Almanza did not object to the district court’s consideration of his arrests,
so our review is for plain error. See United States v. Jones, 

, 792
(5th Cir. 2007). To show plain error, Frias-Almanza must demonstrate that the
error was clear or obvious and affects his substantial rights. See Puckett v.
United States, 

, 135 (2009). If he makes such a showing, we may
exercise our discretion to correct the error, but only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. See id.
      Even if the district court erred in considering some of Frias-Almanza’s
prior arrests that were nothing other than the mere fact of an arrest, see Harris,
702 F.3d at 229, he has not shown that his substantial rights were affected. In
support of the sentence, the district court cited Frias-Almanza’s lengthy criminal
history, which started when he was 15 years old. The court also observed that,
although Frias-Almanza did not receive criminal history points for ten of his
prior convictions, his criminal history category is still VI, based on 20 criminal
history points. In light of the district court’s discussion of other permissible
factors when it imposed Frias-Almanza’s sentence, he has failed to show a
reasonable probability that he would have received a lesser sentence absent the
court’s consideration of his arrest record. See United States v. Williams, 

, 495-96 (5th Cir. 2010). Finally, Frias-Almanza fails entirely to address
whether any of the errors he alleges affected the fairness, integrity, or public
reputation of judicial proceedings. He has not demonstrated plain error in the
determination of his sentence. See id. at 496.
      Frias-Almanza       also   claims     that    his   sentence   is    substantively
unreasonable. He argues that it is longer than necessary to achieve the 18
U.S.C. § 3553(a) sentencing factors. Specifically, he contends that the guidelines

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                                 No. 12-51146

adequately accounted for his sentence, emphasizing that six of his uncounted
convictions were for driving with a suspended license. Frias-Almanza also notes
that the instant offense is his first for illegal reentry, comparing it to a
“relatively minor, trespassory conduct.” Frias-Almanza further points out that
he previously lived in the United States for 25 years, that he only returned
illegaly because of his family, and that he will not return again because he is
now aware of the penalties he faces.
      Frias-Almanza failed to object to his sentence as substantively
unreasonable, so this claim too is reviewed for plain error. See United States v.
Peltier, 

, 391-92 (5th Cir. 2007). We have previously rejected the
contention that the Guidelines overstate the seriousness of illegal reentry
because it is simply an international trespass offense. See United States v.
Aguirre-Villa, 

, 683 (5th Cir. 2006). Frias-Almanza’s sentence is
justified by the facts, and it advances the objectives of § 3553(a)(2), such as
promoting respect for the law and affording adequate deterrence to criminal
conduct. See United States v. Rodriguez, 

, 234-35 (5th Cir. 2011);
United States v. Saldana, 

, 310 (5th Cir. 2005). Moreover, it is well
within the range of variances and departures that we have upheld. See, e.g.,
United States v. Herrera-Garduno, 

, 532 (5th Cir. 2008); United
States v. Zuniga-Peralta, 

, 347-48 (5th Cir. 2006). Accordingly, the
judgment of the district court is AFFIRMED.




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