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

                                                 FILED
                                                                            April 28, 2009
                                     No. 08-50841
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee

v.

RENE LEMUS-VASQUEZ

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:08-CR-93-ALL


Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
       Rene Lemus-Vasquez appeals his 27-month sentence following his
conviction, upon a plea of guilty, for illegal reentry after deportation. He argues
that his non-Guidelines sentence is unreasonable because it is greater than
necessary to satisfy the sentencing goals of 18 U.S.C. § 3553(a). Vasquez avers
that the district court erred in justifying the upward variance on its conclusion
that the eight-level aggravated-felony increase under U.S.S.G. § 2L1.2(b)(1)(C)
was not sufficient to capture the seriousness of the prior offense. He essentially

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-50841

argues that the fact of the prior offense was already accounted for by the
Guidelines by the application of the eight-level increase and could not serve as
the basis for the district court’s decision to vary upward, and that the court
failed to take into account his personal circumstances.
      As Vasquez has not argued that procedural error exists, this court
considers the substantive reasonableness of the sentence under the abuse-of-
discretion standard. 1     The district court properly used the unchallenged
guidelines range as the starting point and initial benchmark. The district court
then properly considered the sentencing factors of § 3553(a), including Vasquez’s
personal history and characteristics. The district court was not precluded from
imposing a departure or variance based on factors that the Guidelines had
already taken into account.2 Moreover, the extent of the variance is consistent
with other sentences that this court has affirmed.3
      The judgment of the district court is AFFIRMED.




      1
          See Gall v. United States, 128 S. Ct. 586, 597 (2007).
      2
       See United States v. Brantley, 537 F. 3d 347, 350 (5th Cir. 2008); United
States v. Williams, 517 F.3d 801, 810-11 (5th Cir. 2008).
      3
       See, e.g., Brantley, 537 F.3d at 348-50; United States v. Saldana, 427 F.3d
298, 311-13 (5th Cir. 2005).

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