                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                     F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                         July 25, 2007

                                                                  Charles R. Fulbruge III
                                                                          Clerk
                               No. 06-50662
                             Summary Calendar


                         UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

                                    versus

                          JOSE GUADALUPE VASQUEZ,

                                                     Defendant-Appellant.

                          --------------------
             Appeal from the United States District Court
                   for the Western District of Texas
                       USDC No. 2:05-CR-1011-ALL
                          --------------------

Before JONES, Chief Judge, and KING and DAVIS, Circuit Judges.

PER CURIAM:*

     Jose    Guadalupe    Vasquez   pleaded   guilty   to   two    counts     of

transporting illegal aliens within the country and was sentenced to

concurrent 27-month terms of imprisonment, concurrent three-year

terms of supervised release, a $2000 fine, and a $200 special

assessment.    Vasquez’s guidelines range of imprisonment was 10 to

16 months.     The district court sentenced Vasquez in excess of the

guidelines range based, in part, on its finding that Vasquez’s

criminal history was underrepresented and based, in part, upon the

factors of 18 U.S.C. § 3553(a).       The district court also admonished

     *
      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this opinion should not be published and is not precedent except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.
Vasquez that it was taking his “bad attitude” during his sentencing

hearing into consideration in selecting his sentence.

     Vasquez argues that the district court abused its discretion

in sentencing him in excess of the advisory guidelines range, and

he characterizes his sentence as an upward departure. However, the

district court did not specifically state that it was upwardly

departing when it imposed Vasquez’s sentence or reference an

upward-departure provision under the Guidelines.      Therefore, we

treat Vasquez’s sentence as a non-guidelines sentence.   See United

States v. Armendariz, 451 F.3d 352, 358 n.5 (5th Cir. 2006).

     Even if the district court’s finding that Vasquez’s criminal

history category underrepresented his criminal past was clearly

erroneous, Vasquez’s “sentence did not ‘result from’ any error in

applying the Guidelines or calculating the advisory range,” and we

therefore will not vacate his sentence.   United States v. Davis,

478 F.3d 266, 273 (5th Cir. 2007) (emphasis added).    The district

court also considered the § 3553(a) factors, particularly the need

for the sentence to promote respect for the law.   Vasquez has not

demonstrated that the decision to sentence him in excess of the

advisory guidelines range was an abuse of discretion or that his

27-month sentence is unreasonable.   The judgment of the district

court is AFFIRMED.




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