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

                                                FILED
                                                                June 16, 2009
                                No. 08-50936
                             Conference Calendar            Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

EVER ARTURO RODRIGUEZ-OROZCO

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                        USDC No. 3:08-CR-1732-ALL


Before SMITH, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
      Ever Arturo Rodriguez-Orozco (Rodriguez) appeals his 36-month sentence
for illegally reentering the United States following a previous deportation in
violation of 8 U.S.C. § 1326.    He argues that the district court erred by
sentencing him above the applicable 21-27 month guidelines range. Specifically,
Rodriguez contends that the district court abused its discretion by failing to
“adequately address” that Rodriguez had illegally returned to the United States




      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                    No. 08-50936

to be with his family and that he would no longer pose a threat of returning illegally.
      Following United States v. Booker, 543 U.S. 220 (2005), sentences are
reviewed for reasonableness in 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). Because
Rodriguez does not challenge the procedural correctness of his 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
an abuse-of-discretion standard. See Gall v. United States, 128 S. Ct. 586, 596-
97 (2007).
      The Government argues, however, that because Rodriguez did not object
to the reasonableness of his sentence in the district court, review should be for
plain error only. See United States v. Peltier, 505 F.3d 389, 390-92 (5th Cir.
2007), cert. denied, 128 S. Ct. 2959 (2008). Rodriguez counters that he was not
required to formally object to the reasonableness of his sentence because he
sufficiently brought his position to the district court’s attention. This court need
not resolve this controversy because Rodriguez is not entitled to relief even if his
sentence is reviewed under the abuse-of-discretion standard. See United States
v. Rodriguez, 523 F.3d 519, 525 (5th Cir.), cert. denied, 129 S. Ct. 624 (2008)
(declining to determine standard of review under similar circumstances).
      The district court imposed a non-guidelines sentence above the guidelines
range. The selection of a non-guidelines sentence is within the discretion of the
district court. Gall, 128 S. Ct. at 597. 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).



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                                 No. 08-50936

      The district court concluded that, in light of Rodriguez’s repeated
convictions for illegal reentry, the applicable guidelines range did “not provide
a sentence sufficient to deter effectively Rodriguez from returning to the United
States.” This is a proper sentencing consideration. See § 3553(a)(2)(B). Further,
the district court clearly explained its deterrence-based rationale and was not
required to engage in “robotic incantations that each statutory factor has been
considered.” Smith, 440 F.3d at 707 (internal quotation marks and citation
omitted).   Finally, the district court’s upward variance from the guidelines
maximum of 27 months to a sentence of 36 months was not unreasonable. This
court has upheld variances considerably greater than the increase in Rodriguez’s
sentence.   See Brantley, 537 F.3d at 348-50 (variance from the guidelines
maximum of 51 months to a sentence of 180 months); United States v. Herrera-
Garduno, 519 F.3d 526, 530-32 (5th Cir. 2008) (variance from the guidelines
maximum of 27 months to a sentence of 60 months); Smith, 440 F.3d at 708-10
(same).
      Rodriguez has not shown that the district court imposed an unreasonable
sentence.   See Gall, 128 S. Ct. at 596-97.     Accordingly, the district court’s
judgment is AFFIRMED.




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