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

                                                                            FILED
                                                                         January 26, 2009
                                     No. 08-30577
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff–Appellee,

v.

SHAWN LEE,

                                                  Defendant–Appellant.


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:07-CR-297-1


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Shawn Lee appeals his non-Guideline sentence following his guilty plea
conviction for being a felon in possession of a firearm (Count 1), possession of
cocaine and marijuana subsequent to a prior drug conviction (Count 2), and
possession with the intent to distribute less than 100 grams of heroin (Count 3).
The district court imposed consecutive sentences of 33 months on Count 1, 24
months on Count 2, and 33 months on Count 3. Lee avers that the district court
abused its discretion by imposing a sentence that was more than three times the


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 08-30577

upper end of the Guidelines range of 27 to 33 months of imprisonment. He
argues that his sentence is unreasonable because the district court’s upward
variance was based on his arrest history and on reasons that were already
accounted for under the Guidelines.
      As Lee has not argued that procedural error exists, this court considers the
substantive reasonableness of the sentence under the abuse-of-discretion
standard. See Gall v. United States, 128 S. Ct. 586, 597 (2007). The district
court properly used the unchallenged Guidelines range as the starting point and
initial benchmark. The district court then properly considered the sentencing
factors of 18 U.S.C. § 3553(a), explaining why the Guidelines range was
insufficient. See id. The record does not reveal the consideration by the district
court of Lee’s arrest history as the basis for the variance. The district court
made it very clear that Lee’s arrests were not considered when fashioning his
sentence, twice reiterating that fact on the record. Further, the district court
was not precluded from imposing a departure or variance based on factors that
the Guidelines had already taken it into account. See United States v. Brantley,
537 F. 3d 347, 350 (5th Cir. 2008) (holding that a court could base a non-
Guideline sentence on factors already taken into account by the Guidelines);
United States v. Williams, 517 F.3d 801, 810-11 (5th Cir. 2008).
      Moreover, the extent of the variance is consistent with other sentences
that this court has affirmed, and the district court had the discretion to impose
consecutive sentences. See Brantley, 537 F.3d at 348-50; United States v. Jones,
444 F.3d 430, 433-34, 441-42 (5th Cir. 2006); United States v. Saldana, 427 F.3d
298, 312 (5th Cir. 2005); United States v. Ronquillo, 508 F.3d 744, 750-52 (5th
Cir. 2007), cert. denied, 128 S. Ct. 2458 (2008).
      The judgment of the district court is AFFIRMED.




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