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

                                                FILED
                                                                  November 23, 2009
                                 No. 09-10449
                               Summary Calendar                 Charles R. Fulbruge III
                                                                        Clerk

UNITED STATES OF AMERICA,

                                             Plaintiff-Appellee

v.

SERAFIN LOPEZ-TOVAR,

                                             Defendant-Appellant


                 Appeal from the United States District Court
                      for the Northern District of Texas
                           USDC No. 5:08-CR-77-1


Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
      Serafin Lopez-Tovar appeals the 24-month sentence imposed following his
guilty-plea conviction for illegal reentry after deportation in violation of 8 U.S.C.
§ 1326. He contends that the district court erred by sentencing him above the
applicable 2-8 month guidelines range because the court based the upward
variance on its disagreement with the exclusion by the Sentencing Guidelines
of his aged convictions from his criminal history score.



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 09-10449

      Although post-Booker, the Sentencing Guidelines are advisory only, and
an ultimate sentence is reviewed for reasonableness under an abuse-of-
discretion standard, the district court must still properly calculate the guideline-
sentencing range for use in deciding on the sentence to impose. Gall v. United
States, 552 U.S. 38, 128 S. Ct. 586, 596 (2007). We conduct the reasonableness
review in the light of the sentencing factors in 18 U.S.C. § 3553(a). United
States v. Mares, 402 F.3d 511, 519-20 (5th Cir. 2005). If, as in this instance, a
defendant does not challenge the procedural correctness of the sentence, we may
proceed to an examination of the substantive reasonableness of the sentence, see
United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008), under the above-
mentioned abuse-of-discretion standard. See Gall, 128 S. Ct. at 597.
      The district court imposed a non-guidelines sentence above the applicable
guidelines range.    The selection of a non-guidelines sentence is within the
discretion of the district court. Id. This court “must give due deference to the
district court’s decision that the § 3553(a) factors, on a whole, justify the extent
of the variance.” Id. “A non-Guideline sentence unreasonably fails to reflect the
statutory sentencing factors 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 the
sentencing factors.” United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006).
      The district court explained that it imposed an upward variance from the
recommended guidelines range because Lopez-Tovar had a “serious criminal
history,” including six convictions that did not receive criminal history points
under the Guidelines. The district court noted that three of his convictions were
for driving while intoxicated and that, all together, he had nine prior convictions.
The district court further explained that it had considered the § 3553(a) factors,
including the nature and circumstances of the offense, the history and
characteristics of the defendant, the need to promote respect for the law, the



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need to afford adequate deterrence to further criminal conduct, and the need to
protect the public from further crimes by the defendant.
      The district court’s upward variance from the guidelines maximum of
8 months to a sentence of 24 months was not unreasonable. See Brantley, 537
F.3d at 348-50 (variance from the guidelines maximum of 51 months to a
sentence of 180 months deemed reasonable); United States v. Saldana, 427 F.3d
298, 312 (5th Cir. 2005) (noting that although the “district court quadrupled the
maximum sentence allowable for [the defendant] under the Guidelines,” the
sentence was reasonable); United States v. Smith, 417 F.3d 483, 492-93 (5th Cir.
2005) (upholding departure of almost 300% from guidelines range maximum of
41 months to 120 months). The district court’s judgment is AFFIRMED.




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