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

                                                 FILED
                                                                         September 3, 2009
                                     No. 08-51064
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.


JOHN ALBERT CERDA,
                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 1:07-CR-230-2


Before DAVIS, BARKSDALE, and GARZA, Circuit Judges.
PER CURIAM:*
       John Albert Cerda appeals the 60-month sentence imposed by the district
court following his guilty plea to possession with intent to distribute less than
50 grams of marijuana, in violation of 21 U.S.C. § 841. Cerda contends the
district court erred by sentencing him above the applicable 30-37 month




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-51064

guidelines range because the court based the upward variance on factors already
taken into account by the Sentencing Guidelines.
      Although post-Booker, the Sentencing Guidelines are advisory only, and
an ultimate sentence is reviewed for reasonableness under an abuse-of-
discretion standard, the district court must still properly calculate the guideline-
sentencing range for use in deciding on the sentence to impose. Gall v. United
States, 552 U.S. 38, 128 S. Ct. 586, 596 (2007). In that respect, its application
of the guidelines is reviewed de novo; its factual findings, only for clear error.
E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008);
United States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005).
      Our court conducts this reasonableness review in the light of the
sentencing factors in 18 U.S.C. § 3553(a). United States v. Mares, 402 F.3d 511,
519-20 (5th Cir. 2005). If, as in this instance, a defendant does not challenge the
procedural correctness of the 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 the above-mentioned abuse-of-discretion
standard. See Gall, 128 S. Ct. at 597. (Arguably, because Cerda did not contend
in district court that the sentence imposed was unreasonable, a plain-error
standard of review could be applied.)
      The district court imposed a non-guidelines sentence above the applicable
guidelines range.    The selection of a non-guidelines sentence is within the
discretion of the district court. Id. This court “must give due deference to the
district court’s decision that the § 3553(a) factors, on a whole, justify the extent
of the variance”. Id. “A non-Guideline sentence unreasonably fails to reflect the
statutory sentencing factors where it (1) does not account for a factor that should
have received significant weight, (2) gives significant weight to an irrelevant or
improper factor, or (3) represents a clear error of judgment in balancing the
sentencing factors.” United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006).



                                         2
                                 No. 08-51064

      The district court determined the sentence imposed was reasonable based
upon Cerda’s extensive and violent criminal history, which includes: conduct not
taken into account by the Guidelines; Cerda’s drug addiction and gang
membership; the nature and circumstances of the offense; the need to protect the
public from future crimes Cerda might commit; and the need to reflect the
seriousness of the offense. See § 3553(a)(1)–(2). The district court’s upward
variance from the guidelines maximum of 37 months to a sentence of 60 months
was not unreasonable. See Brantley, 537 F.3d at 348-50 (variance from the
guidelines maximum of 51 months to a sentence of 180 months deemed
reasonable); United States v. Herrera-Garduno, 519 F.3d 526, 530-32 (5th Cir.
2008) (affirming the reasonableness of a variance from the guidelines maximum
of 27 months to a sentence of 60 months); Smith, 440 F.3d at 708-10 (same).
      AFFIRMED.




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