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

                                                 FILED
                                                                        September 23, 2009
                                     No. 08-51172
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JORGE JARAMILLO-AVELINO,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                           USDC No. 1:08-CR-318-ALL


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       Jorge Jaramillo-Avelino (Jaramillo) pleaded guilty to illegal reentry in
violation of 8 U.S.C. § 1326. The district court sentenced Jaramillo to 60 months
in prison and three years of supervised release. The 60-month sentence was
above the Guidelines range of 21 to 27 months of imprisonment. Jaramillo
contends that his sentence is substantively unreasonable because it was greater
than necessary to meet the requirements of 18 U.S.C. § 3553(a).



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-51172

      Following United States v. Booker, 543 U.S. 220 (2005), sentences are
reviewed for reasonableness in light of the factors set forth in 18 U.S.C.
§ 3553(a). See United States v. Mares, 402 F.3d 511, 519-20 (5th Cir. 2005).
Because Jaramillo does not challenge the procedural correctness of his sentence,
this court may proceed to an examination of the substantive reasonableness of
the sentence, see United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008),
under an abuse-of-discretion standard, see Gall v. United States, 128 S. Ct. 586,
596-97 (2007).
      Jaramillo concedes that the district court properly determined that an
upward departure was warranted. But he argues that the district court erred
in upwardly departing more than was necessary under § 3553(a). The district
court’s decision to upwardly depart was based on the factors set forth in
§ 3553(a), including Jaramillo’s history and characteristics, the need to promote
respect for the law, the need for adequate deterrence, and the need to protect the
public from future crimes by Jaramillo. The district court stressed Jaramillo’s
persistent disregard of immigration laws and attempts to conceal his identity,
noting that although Jaramillo is only 26 years old, he has used over fifteen
aliases and four birth dates, has been officially removed from the United States
on six prior occasions, and has been convicted three times of illegal entry, with
the most recent conviction resulting in a 24-month prison sentence. The district
court also relied, in part, on Jaramillo’s drug and alcohol abuse, and his arrest
and imprisonment for burglary of a building. Because the upward departure
advanced the objectives in § 3553(a) and is justified by the facts of the case, the
district court did not abuse its discretion.
      Finally, the district court’s upward variance from the guidelines maximum
of 27 months to a sentence of 60 months was not unreasonable. The sentence is
less than the statutorily authorized sentence of 120 months of imprisonment.
See 8 U.S.C. § 1326(b)(1). Moreover, the extent of the variance is consistent with
other sentences that this court has upheld. See Brantley, 537 F.3d at 348-50

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                                No. 08-51172

(variance from the guidelines maximum of 51 months to a sentence of 180
months); United States v. Herrera-Garduno, 519 F.3d 526, 530-32 (5th Cir. 2008)
(variance from guidelines maximum of 27 months to a sentence of 60 months);
United States v. Smith, 440 F.3d 704, 709-10 (5th Cir. 2006) (same).
      Accordingly, the judgment of the district court is AFFIRMED.




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