                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________                  FILED
                                                           U.S. COURT OF APPEALS
                                No. 09-15494                 ELEVENTH CIRCUIT
                                                                  MAY 6, 2010
                            Non-Argument Calendar
                                                                  JOHN LEY
                          ________________________
                                                                   CLERK

                   D. C. Docket No. 09-00323-CR-T-26-MAP

UNITED STATES OF AMERICA,


                                                                  Plaintiff-Appellee,

                                      versus

CRESENCIO TREJO-VISUETH,

                                                             Defendant-Appellant.


                          ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                        _________________________
                                 (May 6, 2010)

Before EDMONDSON, BIRCH and BARKETT, Circuit Judges.

PER CURIAM:

      Cresencio Trejo-Visueth appeals the district court’s decision to impose an

upward variance and sentence him to 60 months imprisonment for being found in
the United States after having been deported due to an aggravated felony

conviction. Trejo-Visueth’s guideline range called for 18 to 24 months

imprisonment.

      On appeal, Trejo-Visueth first argues that his sentence was procedurally and

substantively unreasonable. We find no merit to these contentions. The sentence

was procedurally reasonable because the district court provided an in-depth

explanation for imposing an upward variance, and, aside from challenging the

adequacy of the district court’s explanation, Trejo-Visueth does not raise any other

procedural reasonableness arguments on appeal. Trejo-Visueth’s sentence was

also substantively reasonable because this was the fourth time he illegally re-

entered the United States. We cannot say that the district court’s determination

that a number of the § 3553(a) factors favored an upward variance was erroneous.

      Trejo-Visueth also argues that the district court violated 18 U.S.C.

§ 3553(c)(2) by failing to give its reasons for imposing an upward variance in

writing. He acknowledges that he failed to make this objection to the district court,

but argues that the applicable standard of review is de novo because the statute in

question “is a Congressional mandate imposed on the court.”

      If a sentencing issue is raised for the first time on appeal, as this claim is,

we will review that issue solely for plain error. United States v. Aguillard, 217



                                            2
F.3d 1319, 1320 (11th Cir. 2000). Under plain error review, there must be (1) an

error, (2) that is plain, and (3) that affects substantial rights. Id. When these three

factors are met, we may then exercise our discretion and correct the error if it

seriously affects the fairness, integrity, or public reputation of the judicial

proceedings. United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 1776, 123

L.Ed.2d 508 (1993). For an error to affect substantial rights, it generally “must

have been prejudicial: It must have affected the outcome of the district court

proceedings.” Id. at 734, 113 S.Ct. at 1778.

      When a district court imposes a sentence outside of the applicable guideline

range, 18 U.S.C. § 3742(c)(2) requires that the “reasons [for the variance or

departure] must . . . be stated with specificity in the written order of judgment and

commitment.” 18 U.S.C. § 3742(c)(2). However, in this case, the court orally

explained its reasons for imposing an upward variance during the sentencing

proceeding. Although the district court failed to include a written statement of

reasons with its judgment, appellant cannot establish that his substantial rights

have been affected because the court sufficiently stated on the record the reasons

for the sentences it was imposing.



      AFFIRMED.



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