     Case: 18-40349      Document: 00514832172         Page: 1    Date Filed: 02/12/2019




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

                                                                                FILED
                                    No. 18-40349                         February 12, 2019
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

RAUL PENA-SANCHEZ, JR.,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:17-CR-1048-1


Before BENAVIDES, HIGGINSON, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Raul Pena-Sanchez, Jr., pleaded guilty to violating 18 U.S.C. § 554(a) by
exporting ammunition from the United States to Mexico. The district court
calculated an advisory sentencing guidelines range of 46 to 57 months but
sentenced Pena-Sanchez to 70 months of imprisonment. He now appeals his
sentence, and we affirm.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 18-40349     Document: 00514832172     Page: 2   Date Filed: 02/12/2019


                                  No. 18-40349

      This court recognizes three types of sentences: (1) a sentence within the
guidelines range, (2) an upward or downward departure authorized by the
Sentencing Guidelines, and (3) a non-guidelines sentence, or variance, that is
outside the guidelines range. See United States v. Smith, 440 F.3d 704, 706-
07 (5th Cir. 2006). Here, the record as a whole indicates that the district court
imposed the 70-month sentence in the alternative as either an upward
departure or an upward variance.            Pena-Sanchez challenges only the
procedural reasonableness of the district court’s application of the guidelines
departure provisions, but those provisions are inapplicable to the imposition of
an upward variance. See, e.g., United States v. Gutierrez, 635 F.3d 148, 152-
53 (5th Cir. 2011).    He has therefore failed to brief any challenge to the
imposition of his sentence as an upward variance, and we affirm on that
unchallenged alternative basis. See United States v. Hebert, 813 F.3d 551, 561-
62 (5th Cir. 2015); Capital Concepts Props. 85-1 v. Mut. First, Inc., 35 F.3d 170,
176 (5th Cir. 1994).
      AFFIRMED.




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