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

                                                                  FILED
                                                                  April 24, 2008
                                No. 07-40623
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

DAVID MARTINEZ-CEREZO

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 5:06-CR-633-1


Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
      David Martinez-Cerezo (Martinez) pleaded guilty to being a prohibited
person in possession of a firearm, in violation of 18 U.S.C. § 922(g), and using a
firearm during a drug-trafficking crime, in violation of 18 U.S.C. 924(c). He
appeals the 168-month consecutive sentence he received on the § 924(c) count,
arguing that such sentence is unreasonable. He contends that he should have
received a 10-year consecutive sentence, pursuant to § 924(c) and U.S.S.G.
§ 2K2.4(b), and that the district court’s upward variance was not justified.

      *
      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should not be published and is not precedent except under the limited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. 07-40623

      The    district   court’s   non-guidelines   sentence    is   reviewed    for
unreasonableness, using an abuse-of-discretion standard. See Gall v. United
States, 128 S. Ct. 586, 596 (2007). Martinez has abandoned by failing to brief
any argument that the district court committed procedural errors in calculating,
selecting, or explaining the reasons for the sentence imposed. See Yohey v.
Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). This court’s review is thus
confined to whether the sentence is substantively unreasonable. See Gall, 128
S. Ct. at 596.
      Martinez argues that the § 924(c) sentence is unreasonable because the
variance was not warranted, especially as he had no criminal history points,
citing the application notes to § 2K2.4(b). To the extent that Martinez contends
that a variance in a § 924(c) case is authorized only on the basis of a defendant’s
criminal history being underrepresented, the argument is without merit. See §
2K2.4, comment. (n.2(B)); see also United States v. Mares, 402 F.3d 511, 518-19
(5th Cir. 2005).
      The district court properly relied on the § 3553(a) factors to impose a
variance in this case. It specifically relied on the nature and circumstances of
the offense, which it found to be “outrageous” and “horrendous,” involving
Martinez and his codefendant firing 17 shots at a vehicle in a Wal-Mart public
parking lot during a busy holiday shopping season. See § 3553(a)(1). The
district court also relied on the characteristics of the defendant, noting that
Martinez was a self-admitted paid assassin for a violent Mexican drug cartel.
See § 3553(a)(1). The court additionally relied on the need to protect the public
and for just punishment given the seriousness of the offense, noting that the true
nature of Martinez’s offense was attempted murder or conspiracy to commit
murder, and it used the guidelines calculation for such offense as the basis for
the variance. See §§ 3553(a)(2)(A) and (a)(3).
      Martinez makes no argument that the district court’s consideration of the
§ 3553(a) factors was improper, and he has failed to show that the sentence
                                No. 07-40623

imposed was unreasonable. See Yohey, 985 F.2d at 224-25; see also See Gall, 128
S. Ct. at 597. Accordingly, the district court’s judgment is AFFIRMED.
