                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                             No. 09-15305
                                                             MAY 21, 2010
                         Non-Argument Calendar
                                                              JOHN LEY
                       ________________________                CLERK

                  D. C. Docket No. 09-00002-CR-JEC-1

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

JACINTO LOPEZ-VELASQUEZ,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                     _________________________

                              (May 21, 2010)



Before TJOFLAT, CARNES and WILSON, Circuit Judges.

PER CURIAM:
      Jacinto Lopez-Velasquez appeals his 46-month sentence following his guilty

plea to illegal re-entry of an aggravated felon in violation of 8 U.S.C. § 1326(a)

and (b)(2). He contends that the district court erred in applying an upward

departure under U.S.S.G. § 4A1.3. Lopez-Velasquez also argues that his sentence

was substantively unreasonable.

                                          I.

      Lopez-Velasquez asserts two challenges to the district court’s upward

departure. He contends that the district court erred in relying upon his remote

convictions to impose an upward departure because they were dissimilar

convictions that do not fit within § 4A1.3(A)–(E). Lopez-Velasquez’s argument is

without merit. As grounds for a § 4A1.3 departure, the guidelines permit the

sentencing court to consider outdated convictions that are dissimilar, but “serious.”

See U.S.S.G. § 4A1.2, comment (n.8); United States v. Brown, 51 F.3d 233, 234

(11th Cir. 1995). The district court concluded that Lopez-Velasquez’s remote

convictions were serious because they showed a pattern of criminal behavior that

spanned over a long period of time. The district court noted that Lopez-

Velasquez’s convictions started in the late 1980s and observed that “the conduct

implicated resources with communities that had to deal with the repeated conduct

and quality of life issues with folks that were the victims of some of these



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offenses.” See Brown, 51 F.3d at 234 (rejecting defendant’s argument that it was

improper to consider his three prior convictions where the district court concluded

that they showed “a pattern which as a whole [was] very serious . . . because it

continued over such a long period of time”). The district court did not err in

relying upon Lopez-Velasquez’s remote convictions.

      Lopez-Velasquez also contends that the district court failed to follow the

proper procedure for imposing a departure. He argues that the district court did not

provide a reasoned basis for increasing his criminal history category from II to V.

“When departing upward under § 4A1.3, the sentencing court generally is required

to compare the defendant to other defendants in the next highest criminal history

category until an appropriate category is reached.” United States v. Maurice, 69

F.3d 1553, 1559 (11th Cir. 1995); see also United States v. Williams, 989 F.2d

1137, 1142 (11th Cir. 1993). However, when a sentencing court selects a higher

criminal history category under § 4A1.3 by adding point totals for remote

convictions, an explanation of that calculation serves as an adequate explanation

for the inappropriateness of the intervening criminal history categories. Maurice,

69 F.3d at 1559.

      Lopez-Velasquez’s argument again lacks merit. The district court

methodically went through each of his remote convictions and assigned points to



                                          3
them. After doing so, the district court concluded that Lopez-Velasquez’s remote

convictions would add 11 points, resulting in a criminal history category of VI.

The district court, however, placed Lopez-Velasquez in a criminal history category

of V, observing that the “math gets you to six” but that it was “going to be slightly

more lenient” because of the sincerity of his remorsefulness. The district court

provided an adequate explanation for the departure from criminal history category

II to V.

                                          II.

       Lopez-Velasquez also challenges the substantive reasonableness of his

sentence. We review a sentence for reasonableness under a “deferential abuse-of-

discretion standard.” Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 591

(2007). A sentence must be both procedurally and substantively reasonable.

United States v. Livesay, 525 F.3d 1081, 1090–91 (11th Cir. 2008). In assessing

the substantive reasonableness of a sentence, we review the totality of the

circumstances “including the extent of any variance from the Guidelines range.”

See Gall, 552 U.S. at 51, 128 S.Ct. at 597. “[T]he party who challenges the

sentence bears the burden of establishing that the sentence is unreasonable in the

light of both that record and the factors in section 3553(a).” United States v.

Talley, 431 F.3d 784, 788 (11th Cir. 2005).



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      Lopez-Velasquez contends that his 46-month sentence was greater than

necessary to achieve the purposes of § 3553(a) because his remote convictions

were related to his drug addiction and recurring homelessness. He argues that a

sentence within the advisory guidelines would have adequately achieved the

purposes of sentencing. Given Lopez-Velasquez’s extensive criminal history and

repeated deportations, we cannot say that the district court’s sentence, which was

well below the statutory maximum, was unreasonable.

      AFFIRMED.




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