                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________                  FILED
                                                          U.S. COURT OF APPEALS
                               No. 08-15011                 ELEVENTH CIRCUIT
                                                            FEBRUARY 25, 2009
                           Non-Argument Calendar
                                                             THOMAS K. KAHN
                         ________________________
                                                                  CLERK

                       D. C. Docket No. 07-00020-CR-6

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

JOSE JAQUEZ-JAQUEZ,

                                                            Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                     for the Southern District of Georgia
                       _________________________

                              (February 25, 2009)

Before DUBINA, BARKETT and FAY, Circuit Judges.

PER CURIAM:

     Appellant Jose Jaquez-Jaquez (“Jaquez”) pled guilty to one count of illegally
entering the United States after removal, a violation of 8 U.S.C. §§ 1326(a) and

(b). The district court sentenced him to 42 months’ imprisonment. He appeals,

arguing that his sentence exceeds the Guideline recommendation by five months.

       Specifically, Jaquez argues that the district court was unreasonable in

imposing a sentence outside of the Guideline range because: (1) the Sentencing

Commission has already addressed the court’s concerns regarding the § 3553(a)

factors through the applicable Guideline range; and (2) no factors in the record

exist that would support an upward “departure”1 based on the commentary of

U.S.S.G. § 4A1.1-4A1.3.

       The Supreme Court has held that sentences must be reviewed for

unreasonableness. United States v. Booker, 543 U.S. 220, 261–62, 125 S. Ct. 738,

765–66, 160 L. Ed. 2d 621 (2005). However, when a defendant raises an issue on

appeal that was not raised before the district court, as did Jaquez, this court must

review for plain error. See Fed.R.Crim.P. 52(b). Under the plain error standard,

Jaquez must show that: “(1) an error occurred; (2) the error was plain; (3) it

affected his substantial rights; and (4) it seriously affected the fairness of the

judicial proceedings.” United States v. Gresham, 325 F.3d 1262, 1265 (11th Cir.


       1
        Although Jaquez refers to the district court’s sentence as an upward departure, the court
explained that it is an upward variance based on the § 3553(a) factors. See United States v. Irizarry,
458 F.3d 1208, 1211-1212 (11th Cir. 2006).


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2003).

         The sentencing court shall impose a sentence “sufficient, but not greater than

necessary” to comply with the purposes of sentencing listed in § 3553(a)(2),

namely to reflect the seriousness of the offense, promote respect for the law,

provide just punishment for the offense, deter criminal conduct, protect the public

from future criminal conduct by the defendant, and provide the defendant with

needed educational or vocational training or medical care. 18 U.S.C. § 3553(a)(2).

The sentencing court must also consider the following factors in determining a

particular sentence: the nature and circumstances of the offense and the history and

characteristics of the defendant, the kinds of sentences available, the applicable

Guideline range, the pertinent policy statements of the Sentencing Commission, the

need to avoid unwarranted sentencing disparities, and the need to provide

restitution to victims. See 18 U.S.C. § 3553(a)(1), (3)-(7).

         We have not squarely decided whether the district court can base an upward

variant sentence on factors already accounted for in the Guideline range.

Assuming arguendo that the district court should not consider § 3553(a) factors

already accounted for in the Guidelines, we conclude from the record here that the

district court did not consider the same factors twice when sentencing Jaquez.

Rather, in imposing an upward variance to the Guideline range, the district court


                                            3
discussed its concern with Jaquez’s recidivism, “egregious misconduct” that

included burglarizing multiple churches, and the failure of past punishments to

deter his future criminal behavior. The district court also considered Jaquez’s

“absolute disdain for any authority of the United States government in protection

of its borders.” Based on the foregoing, we conclude that the district court did not

commit plain error in sentencing Jaquez. Accordingly, we affirm Jaquez’s

sentence.

      AFFIRMED.




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