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

                                                                FILED
                                                              January 15, 2009
                               No. 08-50371
                             Summary Calendar             Charles R. Fulbruge III
                                                                  Clerk

UNITED STATES OF AMERICA

                                         Plaintiff-Appellee

v.

ALVARO ENRIQUE VIAFARA-CAICEDO

                                         Defendant-Appellant


                Appeal from the United States District Court
                     for the Western District of Texas
                        USDC No. 2:07-CR-790-ALL


Before REAVLEY, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
     Alvaro Enrique Viafara-Caicedo appeals his sentence following a guilty
plea to being in the United States illegally after deportation. His 52-month
sentence was above the advisory guidelines range of 33 to 41 months and was
imposed outside the guidelines system.
     We generally review sentences for reasonableness in light of the
sentencing factors of § 3553(a). United States v. Booker, 543 U.S. 220, 261



     *
      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should not be published and is not precedent except under the limited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. 08-50371

(2005). Sentences inside or outside the advisory guidelines range are typically
reviewed for abuse of discretion. Gall v. United States, 128 S. Ct. 586, 597
(2007).
      We first determine whether the sentence is procedurally unreasonable due
to a procedural error “such as failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing to consider the
§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing
to adequately explain the chosen sentence - including an explanation for any
deviation from the Guidelines range.” Id. If the sentence is procedurally
reasonable, we consider whether it is substantively reasonable under “the
totality of the circumstances, including the extent of any variance from the
Guidelines range.” Id. When a sentence is outside the Guidelines, we give
deference to the sentencing court’s decision that the § 3553(a) factors justify the
variance. Id.
      At sentencing, Viafara-Caicedo acknowledged that he had an extensive
criminal history, but he pleaded for a lenient sentence based on his family
circumstances. He did not object to the district court’s explanation of its reasons
for selecting a sentence outside the advisory sentencing guidelines range or
challenge the procedural reasonableness of his sentence. Arguably, his appellate
challenge to his sentence is reviewed for plain error only. See United States v.
Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007), cert. denied, 128 S. Ct. 2959 (2008);
see also United States v. Izaguirre-Losoya, 219 F.3d 437, 441 (5th Cir. 2000)
(applying plain error review to claim that district court gave inadequate reasons
for sentence). To prevail on plain-error review, a defendant must show a clear
or obvious error that affected his substantial rights. United States v. Olano, 507
U.S. 725, 732-35 (1993). If he does so, this court has the discretion to correct the
forfeited error if the error seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Id. at 736. In any event, Viafara-Caicedo’s



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claims fail under either plain error review or the typical review for abuse of
discretion.
      Viafara-Caicedo argues that his sentence is unreasonable because it is
greater than necessary to achieve the sentencing goals of 18 U.S.C. § 3553(a).
He contends that the sentencing court did not consider the mitigating evidence
that he offered at the sentencing hearing. The record makes it clear that the
district court considered the sentencing evidence, the parties’ arguments, and
the sentencing factors set forth in § 3553(a) and that it imposed a sentence
outside the advisory guidelines because of Viafara-Caicedo’s extensive criminal
history. The law requires no more. See Rita v. United States, 127 S. Ct. 2456,
2469 (2007).
      Viafara-Caicedo has not shown that his sentence is procedurally or
substantively unreasonable. See Gall, 128 S. Ct. at 597. Because Viafara-
Caicedo has not made a showing of error or abuse of discretion, the district
court’s judgment is AFFIRMED.




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