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

                                                                 FILED
                                                              December 18, 2008
                               No. 08-40508
                             Summary Calendar             Charles R. Fulbruge III
                                                                  Clerk

UNITED STATES OF AMERICA

                                         Plaintiff-Appellee

v.

VICTOR OSORIO-ABUNDIZ

                                         Defendant-Appellant


                Appeal from the United States District Court
                     for the Southern District of Texas
                         USDC No. 2:08-CR-7-ALL


Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
     Victor Osorio-Abundiz (Osorio) appeals the sentence imposed after he
pleaded guilty to being in the United States illegally after deportation. His
60-month sentence was above the advisory guidelines range of 30 to 37 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should not be published and is not precedent except under the limited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. 08-40508

(2005). Sentences inside or outside the advisory guidelines range are typically
reviewed under the abuse-of-discretion standard. 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.
      In the district court, Osorio requested a sentence at the low end of the
Guidelines but did not raise any objection to the court’s explanation of his
sentence or to the procedural reasonableness of the sentence, which are the only
issues he raises on appeal. Accordingly, review of Osorio’s claims is 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, Osorio’s claims fail under either plain
error review or the typical review for abuse of discretion.



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                                  No. 08-40508

      Osorio contends that the sentence is procedurally unreasonable because
the district court gave an inadequate explanation of the reasons for the variance.
The record and context show that the district court considered the facts and the
parties’ arguments and imposed the upward variance because of Osorio’s violent
character and history and based on factors set forth at 18 U.S.C. § 3553(a). The
law requires no more. Rita v. United States, 127 S. Ct. 2456, 2469 (2007).
      Osorio also contends that the sentence is procedurally unreasonable
because the district court did not consider a departure under § 4A1.3 of the
Guidelines before imposing a non-guidelines variance. In United States v.
Mejia-Huerta, 480 F.3d 713, 723 (5th Cir. 2007), cert. denied, 128 S. Ct. 2954
(2008), we rejected a similar contention that above-Guidelines sentences were
unreasonable because the court did not follow guideline provisions for
departures. We noted that “a sentencing court may impose a non-Guidelines
sentence, i.e., a ‘variance’, but not a ‘departure,’ if it calculates the proper
sentencing range and references the broad array of factors set forth in § 3553(a).”
Id. at 721. There is no support for Osorio’s contention that the district court was
required to consider a departure under the Guidelines before imposing a
non-guideline variance.    Mejia-Huerta also rejected the proposition that a
sentencing court’s “failure to conduct the calculus of § 4A1.3 renders a
non-Guidelines sentence per se unreasonable.” Mejia-Huerta, 480 F.3d at 723.
      Osorio fails to show that his sentence is procedurally unreasonable, and
he does not contend that his sentence is substantively unreasonable. See Gall,
128 S. Ct. at 597. Because Osorio shows no error or abuse of discretion, the
district court’s judgment is AFFIRMED.




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