                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                    F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                         May 11, 2006

                                                                Charles R. Fulbruge III
                                                                        Clerk
                               No. 05-30181
                             Summary Calendar




UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

WALTER STERLING,

                                         Defendant-Appellant.


                         --------------------
            Appeal from the United States District Court
                for the Eastern District of Louisiana
                          No. 2:04-CR-178-ALL
                         --------------------



Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     Walter Sterling appeals the sentence imposed following his

guilty-plea conviction of possession of a firearm by a convicted

felon.   He argues that his sentence, a non-guideline upward devia-

tion to the statutory maximum of 120 months of imprisonment, was

unreasonable because the district court made an upward deviation

based on his criminal history without following the procedures for



     *
        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opinion should not be published and is not precedent except under the limited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. 05-30181
                                 -2-

making an upward departure under the guidelines based on his crim-

inal history.

       The court calculated Sterling’s guidelines sentence range,

used that range as a frame of reference, and made a carefully ex-

plained upward deviation based primarily on Sterling’s criminal

history without making an upward departure under the guidelines.

This is the proper procedure when imposing a non-guideline sen-

tence.    See United States v. Smith, 440 F.3d 704, 708 (5th Cir.

2006).    Whether an upward departure would have been warranted is

immaterial, because the court made an upward deviation outside the

guidelines range, instead of an upward departure.   See id. at 708

n.3.   Sterling’s assertion that the sentence imposed was unreason-

able because the court imposed a non-guideline sentence instead of

an upward departure is unavailing.   See id. at 708 & n.3.

       Sterling further argues that the sentence was unreasonable

because the court did not adequately consider the mitigating fac-

tors that his offense conduct was of middling seriousness, that he

had established family relationships and was affected by his broth-

er’s death, that the best way to prevent recidivism was to treat

his drug addiction, and that the sentence would tend to lessen

guilty pleas and make the criminal justice system function less

smoothly. Because Sterling has not shown that the district court’s

greater consideration of other non-mitigating factors was unrea-

sonable, he has not shown that the decision to make an upward devi-

ation from the guidelines range was unreasonable.       See United
                              No. 05-30181
                                   -3-

States v. Reinhart, 442 F.3d 857, 863-64 (5th Cir. 2006) (holding

upward deviation reasonable where supported by proper factors, even

though some § 3553(a) factors operated in defendant’s favor).

     Given the seriousness of Sterling’s criminal history and of-

fense conduct as found by the district court, the extent of the

deviation, while large, was not unreasonable. See United States v.

Smith, 417 F.3d 483, 491-93 (5th Cir. 2005) (holding upward depar-

ture from 41 months of imprisonment to statutory maximum of 120

months   for   unrepentant   con-artist   with   long   criminal   history

reasonable).

     AFFIRMED.
