                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4074


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

EDGAR ANTONIO LAGUNAS-OCAMPO, a/k/a Edgar Luguna-OCampo,

                  Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.   Louise W. Flanagan,
Chief District Judge. (5:07-cr-00171-FL-1)


Submitted:    January 14, 2009              Decided:   February 20, 2009


Before NIEMEYER, GREGORY, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant.   George E. B. Holding, United States Attorney, Anne
M. Hayes, Jennifer P. May-Parker, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               Edgar    Antonio         Lagunas-OCampo          appeals    his     conviction

and eighty-five month sentence after entering a guilty plea to

illegal reentry of an aggravated felon, in violation of 8 U.S.C.

§ 1326 (2006).              Lagunas-OCampo’s sole contention on appeal is

that his departure sentence, which was fourteen months longer

than     the    high        end    of    his    original          Guidelines       range,     is

unreasonable          and    should      be    vacated.         Finding      no    error,     we

affirm.

               After United States v. Booker, 543 U.S. 220 (2005), a

sentence       is    reviewed      for     reasonableness,          using     an    abuse     of

discretion standard of review.                      Gall v. United States, 128 S.

Ct. 586, 597 (2007).              The first step in this review requires the

court to ensure that the district court committed no significant

procedural error, such as improperly calculating the Guidelines

range.     United States v. Evans, 526 F.3d 155, 161 (4th Cir.

2008).    Lagunas-OCampo claims no procedural error.

               Accordingly,         this       court       must     next     consider        the

substantive reasonableness of the sentence imposed, taking into

account    the       totality      of    the    circumstances.             Id.    at   161-62.

While     the       court    may      presume       that    a     sentence        within     the

Guidelines          range    is   reasonable,        it    may     not     presume     that   a

sentence outside the Guidelines range is unreasonable.                                     Gall,

128 S. Ct. at 597; see United States v. Dalton, 477 F.3d 195,

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197 (4th Cir. 2007) (holding that a district court’s decision to

depart is reviewed for reasonableness).                  Rather, in reviewing a

sentence outside the Guidelines range, this court must consider

“whether the sentencing court acted reasonably both with respect

to its decision to impose such a sentence and with respect to

the extent of the divergence from the sentencing range.”                     United

States    v.    Hernandez-Villanueva,         473    F.3d   118,    123   (4th    Cir.

2007) (citation omitted).

               This court will find a sentence to be unreasonable if

the    sentencing     “court     provides       an   inadequate       statement    of

reasons or relies on improper factors in imposing a sentence

outside the properly calculated advisory sentencing range.”                       Id.

at 123.        The court must, however, give due deference to the

district court’s decision that the 18 U.S.C. § 3553(a) (2006)

factors justify the sentence.             Evans, 526 F.3d at 162.           Even if

this court would have imposed a different sentence, this fact

alone is insufficient to justify vacatur of the district court’s

sentence.      Id.

               We find that the district court’s eighty-five month

departure      sentence   was    substantively          reasonable.       Under    the

Guidelines,       a   district    court        may   depart     upward     from    an

applicable Guidelines range if “reliable information indicates

that   the     defendant’s     criminal       history    category     substantially

under-represents       the   seriousness        of   the    defendant’s    criminal

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history or the likelihood that the defendant will commit other

crimes       . . . .”           U. S. Sentencing Guidelines Manual (“USSG”)

§ 4A1.3(a)(1) (2007); see United States v. Dixon, 318 F.3d 585,

588-89       (4th        Cir.     2003)     (noting         that     under-representative

criminal       history           category        “is    an        encouraged     basis     for

departure”).

              To         determine        whether       a     departure        sentence     is

appropriate         in    such     circumstances,           the    Guidelines    explicitly

state that a court may consider prior sentences not used in the

criminal history calculation.                     See USSG § 4A1.3(a)(2) (2007).

This       court    has     also     recognized         that       probation    and     parole

violations may be considered when assessing the likelihood of

recidivism.         See United States v. Lawrence, 349 F.3d 724, 728

(4th Cir. 2003).             Accordingly, the district court appropriately

considered Lagunas-OCampo’s prior uncounted criminal history and

repeated      failure       to    abide     by    the   terms       of   his   probation    to

determine that a departure sentence was warranted. *

              The district court also provided an adequate statement

of reasons why it was issuing a departure sentence.                                   Notably,

       *
        Although Lagunas-OCampo summarily asserts that the
district court’s departure sentence punished him three times for
the same criminal conduct, this assertion is belied by the fact
that the district court explicitly indicated that it was
increasing Lagunas-OCampo’s criminal history category based on
criminal history not considered by the probation officer in his
original Guidelines range calculation.



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the     district        court      thoroughly       reviewed          and     analyzed

Lagunas-OCampo’s        unscored      criminal       history         and     accurately

highlighted the fact that Lagunas-OCampo repeatedly refused to

comply with his supervised release terms, thereby evidencing a

disregard for United States law.              The district court did so not

only at sentencing, but also in a sentencing memorandum more

thoroughly explaining its rationale for the departure sentence.

Given Lagunas-OCampo’s extensive criminal history and numerous

parole violations, the district court’s meaningful articulation

of its consideration of the § 3553(a) factors, and its careful

consideration      of    factors    appropriately        viewed      when    departing

from the recommended Guideline range, we find that the extent of

the   departure    was     reasonable,       as    well.       Cf.    United     States

v. Davenport, 445 F.3d 366, 372 (4th Cir. 2006) (holding that a

sentence    more    than    three     times       the    top    of     the     advisory

Guidelines range was unreasonable where the factors relied upon

by the district court did not justify such a sentence and the

court failed to explain how the variance sentence served the

§ 3553(a)   factors),       overruled    in       part   on    other       grounds   by,

Irizarry v. United States, 128 S. Ct. 2198 (2008).

            Based on the foregoing, we affirm the district court’s

judgment.    We dispense with oral argument because the facts and

legal   contentions       are   adequately        presented     in    the     materials



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before   the   court   and   argument   would   not   aid   the   decisional

process.

                                                                    AFFIRMED




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