     Case: 12-11244       Document: 00512394339         Page: 1     Date Filed: 10/02/2013




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

                                                                            FILED
                                                                          October 2, 2013
                                     No. 12-11244
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

LEOBARDO BAILON-RENTERIA, also known as Leo Renteria-Balone, also
known as Leobardo Bailey, also known as Jose Renteria-Morales, also known as
Julian Pallon, also known as Julian Pullon, also known as Leberdo
Bailon-Renteria, also known as Leonardo Ramos, also known as Lebordo
Bailon-Renteria, also known as Pedro Pardres, also known as Larvardo Ballon,
also known as Leonardo Bailon-Morales, also known as Leonardo
Morales-Bailon, also known as Leo Balon, agent of Jose Rentiria-Morales,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:12-CR-118-1


Before STEWART, Chief Judge, and SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
       Leobardo Bailon-Renteria (Bailon) pleaded guilty to being illegally present
in the United States following removal and was sentenced to a 48-month term
of imprisonment to be followed by a three-year term of supervised release. The

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                 No. 12-11244

district court indicated that the 48-month sentence of imprisonment was a
variance from the guidelines range of 18-24 months of imprisonment and that,
in the alternative, the sentence was a departure pursuant to U.S.S.G. § 4A1.3(a).
      Attacking the sentence as a departure, Bailon contends that the district
court erred by failing to make findings required under § 5K2.0(a)(3). It is
unnecessary to consider whether the district court erred in imposing a departure
because, as discussed below, the sentence may be affirmed as an upward
variance. See United States v. Bonilla, 524 F.3d 647, 656-59 (5th Cir. 2008);
United States v. Mejia-Huerta, 480 F.3d 713, 723 & n.43 (5th Cir. 2007).
      Bailon asserts that the district court abused its discretion by both
(1) finding that a sentence in excess of 24 months would be greater than
necessary to achieve the statutory purposes of sentencing and (2) imposing a 48-
month sentence. He contends that, by operation of statute, specifically 28 U.S.C.
§ 994(b), the establishment of a guidelines range entails a determination that a
sentence above that range is greater than necessary to achieve the goals of
sentencing set forth in 18 U.S.C. § 3553(a). Relying on Koon v. United States,
518 U.S. 81, 100 (1996), Bailon argues that the district court reached an
erroneous legal conclusion when it determined that a 24-month sentence was
greater than necessary and yet, by imposing a 48-month sentence, also
determined that a sentence greater than 24 months was not greater than
necessary.
      Following United States v. Booker, 543 U.S. 220, 245 (2005), which
rendered the guidelines range “effectively advisory,” this court identified three
types of sentences that a district court could impose: (1) a sentence within the
guidelines range; (2) a “departure” based on the Guidelines, and (3) a non-
guidelines sentence or “variance” outside the guidelines range and based on
§ 3553(a) factors. United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008).
As we noted above, the district court characterized Bailon’s sentence as an
upward variance or, in the alternative, an upward departure. As a variance, the

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                                  No. 12-11244

sentence imposed by the district court was authorized under this court’s
jurisprudence and does not represent an abuse of discretion merely because it
was above the advisory guideline range. See id.
      Further, although the district court adopted the presentence report (PSR),
in doing so it did not indicate that it was making a determination that a
sentence of no more than 24 months – the top of the guidelines range – would be
sufficient to satisfy the sentencing objectives of § 3553(a). Indeed, the district
court stated at sentencing that it was adopting the conclusions set forth in the
PSR as modified or supplemented by any conclusions expressed from the bench.
The district court went on at sentencing to express its determination that a
sentence of 48 months of imprisonment was necessary to address the sentencing
considerations of § 3553(a), and it explained at length its decision to upwardly
vary from the guidelines range with references to Bailon’s extensive criminal
history and his multiple illegal reentries into the United States after removal.
      Bailon fails to establish that the district court reached an erroneous legal
conclusion or that there was reversible error in the imposition of a non-
Guidelines sentence.     Accordingly, the judgment of the district court is
AFFIRMED.




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