                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 January 9, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 06-40260
                         Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

ERIK SAUCEDA-MENDOZA,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 5:05-CR-1056-1
                       --------------------

Before REAVLEY, WIENER and DENNIS, Circuit Judges.

PER CURIAM:*

     Erik Sauceda-Mendoza appeals the sentence he received

following his plea of guilty to one count of transporting

undocumented aliens, a violation of 8 U.S.C. § 1324.      The

district court imposed a sentence of 40 months, above the

advisory guidelines sentencing range of 18 to 24 months, on the

basis that Sauceda-Mendoza transported two aliens in a luggage

carrier strapped to the roof of the vehicle.

     As a threshold matter, the Government argues that Sauceda-

Mendoza failed to preserve error and, thus, review should be for

     *
       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this opinion should not be published and is not precedent except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. 06-40260
                                -2-

plain error only.   By making arguments to the district court in

response to the court’s statement that it was considering

imposing a sentence above the guidelines range, Sauceda-Mendoza

likely preserved any objection to the reasonableness of the

sentence.   However, we need not reach that issue because, under

any standard, the sentence passes muster.

     Although both parties repeatedly refer to the sentence as

involving an upward departure, it is apparent from the Statement

of Reasons that the court imposed a non-guidelines sentence,

i.e., one outside the advisory guidelines system.   Such a

sentence does not involve a departure, which derives from the

Guidelines and is, therefore, not considered a guidelines

sentence, but a variance or deviation from the Guidelines based

on the 18 U.S.C. § 3553(a) factors.    See United States v. Smith,

440 F.3d 704, 707 (5th Cir. 2006).    Accordingly, we review for

reasonableness and, because the sentence involved an upward

deviation, we apply the three-pronged test set out in Smith and

United States v. Duhon, 440 F.3d 711, 715 (5th Cir. 2006).

     The court adequately explained at the sentencing hearing and

in its Statement of Reasons that a sentence above the advisory

range was necessary to reflect the seriousness of the offense and

the danger to the two women of being placed in a luggage carrier.

Although, as Sauceda-Mendoza points out, the danger to the aliens

was addressed by a sentencing enhancement for reckless

endangerment under U.S.S.G. § 2L1.1(b)(5), the court plainly
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                                -3-

found that the specific danger involved in this case was

particularly egregious.   Accordingly, the sentence imposed did

not (1) fail to account for a factor that should have received

significant weight, (2) give significant weight to an irrelevant

or improper factor, or (3) represent a clear error of judgment in

balancing the sentencing factors.   See Duhon, 440 F.3d at 715.

As the court properly calculated the applicable guidelines range

and articulated reasons for its variance, the court committed no

legal error; therefore, the sentence must be given deference.

See Smith, 440 F.3d at 710.   The degree of the upward variance,

from 24 to 40 months, was not unreasonable.   See id. (affirming

upward deviation from 27 to 60 months).

     For the foregoing reasons, the judgment of the district

court is AFFIRMED.
