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

                                                                  FILED
                                                                November 7, 2007
                               No. 07-10368
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

FRANCISCO LUNA-BUSTAMANTE

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Northern District of Texas
                          USDC No. 6:06-CR-53-ALL



Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
      Defendant-Appellant Francisco Luna-Bustamante (“Luna”) appeals his
sentence for illegal reentry after deportation, in violation of 8 U.S.C. § 1326.
Luna pleaded guilty to this offense.     The District Court imposed a non-
Guidelines sentence requiring Luna to serve 84 months of imprisonment and
three years of supervised release. The 84-month sentence is 27 months above
the advisory sentencing range.


      *
      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should not be published and is not precedent except under the limited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. 07-10368

      We conduct a de novo review of the District Court’s application of the
Sentencing Guidelines (“Guidelines”). United States v. Sanchez-Ramirez, 497
F.3d 531, 534 (5th Cir. 2007) (citations omitted). We review a sentence for
unreasonableness. Id. (citations omitted). When a District Court imposes a non-
Guidelines sentence, “we conduct our reasonableness review through an abuse-
of-discretion lens... .” Id. (citations omitted). In this case, we find that the
District Court’s non-Guidelines sentence was reasonable.
      Luna contends that his non-Guidelines sentence was unreasonable
because it was based on the District Court’s disagreement with the policies
underlying the Guidelines and because, in imposing it, the District Court
considered his criminal history, a factor already accounted for in the Guidelines.
Contrary to Luna’s contention, “criminal history is one of the factors that a court
may consider in imposing a non-Guideline sentence.” United States v. Smith,
440 F.3d 704, 709 (5th Cir. 2006). The District Court made several findings
concerning Luna’s criminal history, specifically that he lacked respect for the law
and had received lenient sentences for four prior convictions: one for aggravated
assault with a deadly weapon and three for driving while intoxicated
(“DWI”)——all while in the United States illegally.         In increasing Luna’s
sentence based on these factors, the District Court adhered to the policies
underlying the Guidelines which contemplate increased sentences where a
defendant has received unduly lenient sentences in the past. See U.S.S.G.
§ 4A1.3, cmt. (background). Thus, there is no merit to Luna’s contention that the
District Court increased his sentence based on its disagreement with the policies
underlying the Guidelines. Indeed, in light of the District Court’s specific
findings, the non-Guidelines sentence was reasonable.
      Luna also contends that, pursuant to a discussion of general sentencing
procedures set forth in Rita v. United States, 127 S. Ct. 2456, 2465 (2007), the
District Court was required to provide notice that it intended to impose a non-
Guidelines sentence before doing so. Luna’s argument rests on dicta in Rita,

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which did not involve a departure or a variance and did not overrule this court’s
holding in United States v. Mejia-Huerta, 480 F.3d 713, 716 (5th Cir. 2007),
petition for cert. filed, (Apr. 18, 2007) (No. 06-1381), that a sentencing court need
not provide pre-sentencing notice of its intention to impose a non-Guidelines
sentence. Accordingly, the District Court did not err.
      Finally, in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Luna
raises a separate challenge to the constitutionality of treating prior felony and
aggravated felony convictions as sentencing factors pursuant to 8 U.S.C. § 1326
rather than as elements of the offense that must be found by a jury. We have
held that this issue is “fully foreclosed from further debate.” United States v.
Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), petition for cert. filed, (Aug.
28, 2007) (No. 07-6202). Luna admits as much in his brief noting that this “issue
is raised solely to preserve it for further review.”
      In light of the foregoing, we find that Luna’s non-Guidelines sentence was
reasonable. See United States v. Smith, 440 F.3d 704, 708-09 (5th Cir. 2006).
The judgment of the District Court is AFFIRMED.




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