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

                                                                  FILED
                                                                November 9, 2007
                                No.06-40710
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.


FELIPE ESPINOSA
                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 2:05-CR-693-1


Before KING, DAVIS, and CLEMENT, Circuit Judges
PER CURIAM:*
      Felipe Espinosa pleaded guilty to conspiracy to possess more than 1000
kilograms of marijuana and was sentenced to a 120-month term of
imprisonment. At sentencing, the district court granted the Government’s
motion for a sentence under the safety valve provision of 18 U.S.C. § 3553(e). As
adjusted, Espinosa’s advisory sentencing guidelines range was 87-to-108 months
of imprisonment; however, the district court determined that a non-guidelines
sentence was appropriate because the evidence showed that Espinosa was

      *
      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should not be published and is not precedent except under the limited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. 06-40710

involved in at least two separate conspiracies and that he continued to persist
in drug-trafficking long after his activities were interrupted by authorities. The
district court held that a 120-month was appropriate because Espinosa’s
continued involvement in drug activities was an aggravating factor not taken
into account by the Sentencing Guidelines.
      Espinosa argues that his sentence is the result of an upward departure for
which he did not receive advance notice and that sentencing court departed
upward based on circumstances already considered under the Sentencing
Guidelines. Notwithstanding Espinosa’s argument, it is clear from the record
that his sentence is a non-guidelines sentence rather than an upward departure.
The district court may sua sponte impose a non-guidelines sentence without
advance notice to the defendant. United States v. Mejia-Huerta, 480 F.3d 713,
722-23 (5th Cir. 2007), petition for cert. filed (April 18,2007) (No. 06-1381).
Espinosa’s sentence is reasonable under 18 U.S.C. § 3553(a) because the district
court used the properly calculated advisory Sentencing Guidelines as a frame of
reference, identified appropriate reasons for the sentencing variance, and made
factual findings to support its sentencing determination. Mejia-Huerta, 480 F.3d
at 721; United States v. Smith, 440 F.3d 704, 710 (5th Cir. 2006).
      AFFIRMED.




                                        2
