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

                                                 FILED
                                                                          October 30, 2009
                                     No. 08-40930
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee

v.

JOSE GUADALUPE PADILLA-ALCOCER

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:08-CR-448-1


Before JOLLY, BARKSDALE, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Jose Guadalupe Padilla-Alcocer appeals the 33-month sentence imposed
following his guilty-plea conviction on one count of being unlawfully found in the
United States after deportation, in violation of 8 U.S.C. § 1326.
       In calculating Padilla’s sentencing guidelines range of 30 to 37 months, the
district court included an eight-level aggravated-felony enhancement, pursuant
to Sentencing Guideline § 2L1.2(b)(1)(C), based on Padilla’s prior Texas assault
conviction. For the first time on appeal, Padilla contends that this offense,

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-40930

which falls under § 22.01 of the Texas Penal Code, does not qualify as a crime
of violence and, therefore, does not qualify as an aggravated felony.
         Because this issue was not raised in district court, review is only for plain
error.    In any event, we need not address whether this particular offense
constitutes a crime of violence because Padilla has not demonstrated the
sentence was unreasonable.          The district court imposed a non-Guideline
sentence, stating its desire to impose the 33-month sentence in the light of the
18 U.S.C. § 3553(a) factors and the circumstances of this case, stating that no
lesser sentence was appropriate.
         Under Gall v. United States, 128 S. Ct. 586, 597 (2007), and United States
v. Booker, 543 U.S. 220, 261 (2005), a sentence is reviewed for “reasonableness”.
“A non-Guideline sentence is unreasonable where it (1) does not account for a
factor that should have received significant weight, (2) gives significant weight
to an irrelevant or improper factor, or (3) represents a clear error of judgment
in balancing sentencing factors.” United States v. Tzep-Mejia, 461 F.3d 522, 528
(2006) (internal quotation marks omitted). Our review of the record satisfies us
that the district court gave proper consideration to the contentions of the parties,
the information in the presentence investigation report, and the § 3553(a)
factors. See id.; United States v. Bonilla, 524 F.3d 647, 657-59 (5th Cir. 2008),
cert. denied, 129 S. Ct. 904 (2009).
         AFFIRMED.




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