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

                                                                   FILED
                                                                 October 6, 2008
                                  No. 07-20903
                                consolidated with             Charles R. Fulbruge III
                                  No. 07-41248                        Clerk
                               Summary Calendar


UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

ISAEL SOBERANIS-GOMEZ

                                            Defendant-Appellant


                 Appeals from the United States District Court
                      for the Southern District of Texas
                         USDC No. 4:07-CR-304-ALL
                            USDC No. 2:03-CR-79-4


Before DAVIS, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
      Isael Soberanis-Gomez appeals the sentences imposed following his
conviction for unlawfully transporting aliens within the United States in
violation of 8 U.S.C. § 1324, and the revocation of his supervised release. For the
§ 1324 offense, the district court departed upward to 46 months from the
guidelines range of 24 to 30 months and then imposed a consecutive nine-month

      *
      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should not be published and is not precedent except under the limited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. 07-41248

term of imprisonment as the revocation sentence. Soberanis-Gomez challenges
the sentence as unreasonable. Finding no error, we affirm.
      We review sentences for reasonableness in light of the factors set out in 18
U.S.C. § 3553(a), employing an abuse-of-discretion standard. Gall v. United
States, 128 S. Ct. 586, 595; United States v. Williams, 517 F.3d 801, 808 (5th Cir.
2008). Our review is bifurcated; we look first to whether the court committed
procedural error and, if not, to whether the sentence was reasonable. Williams,
517 F.3d at 808. A sentencing court does not abuse its discretion in deciding to
depart upwardly when its reasons for doing so (1) advance the objectives set
forth in § 3553(a)(2); and (2) are justified by the facts of the case. United States
v. Rajwani, 476 F.3d 243, 249-50 (5th Cir. 2007).
      The district court’s departure was based on uncharged conduct, specifically
unlawful reentry, which the Government agreed not to pursue as part of
Soberanis-Gomez’s plea agreement. The sentence of 46 months was at the low
end of the range that would have applied if Soberanis-Gomez had been convicted
of unlawful reentry. Soberanis-Gomez argues that the district court’s sentence
undermined his plea agreement and ignored the benefits that his early, pre-
indictment plea conferred. He also argues that the court failed to consider his
argument that his criminal history was not substantially under-represented,
given that he received six points for the prior conviction; that there was nothing
extraordinary about his case; and that the sentence imposed was substantially
greater than necessary to satisfy the goals of § 3553(a).
      The district court did not err in departing upward based on uncharged
conduct dismissed as part of a plea agreement. See United States v. Newsom,
508 F.3d 731, 734 (5th Cir. 2007); United States v. Ashburn, 38 F.3d 803, 807-08
(5th Cir. 1994) (en banc). Further, the district court noted that it had considered
Soberanis-Gomez’s prior drug conviction, the circumstances of the instant
offense, his personal circumstances, and the factors set out in § 3553(a). The


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court concluded that the case warranted a departure. We find no procedural
error in the decision to depart upward.
      With respect to the degree of departure and the sentence as a whole, the
sentence of 46 months did not constitute an abuse of discretion. See Newsom,
508 F.3d at 735. We also reject the argument that the consecutive nine-month
revocation sentence rendered the entire sentence unreasonable. That sentence
was within the guidelines range, and the advisory Guidelines provide for
consecutive sentencing in the revocation context. U.S.S.G. § 7B1.3(f).
      The judgment of the district court is AFFIRMED.




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