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

                                                FILED
                                                                February 25, 2009
                                No. 08-10537
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

LUIS LOZANO-ESTRADA

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Northern District of Texas
                          USDC No. 1:07-CR-77-ALL


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
      Luis Lozano-Estrada pleaded guilty to one count of illegal reentry into the
United States. The district court sentenced him to serve 60 months in prison,
which exceeded the advisory guidelines sentencing range. He challenges the
reasonableness of his non-guidelines sentence, arguing that the district court
failed to give an adequate explanation for its choice of sentence, relied on




      *
      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should not be published and is not precedent except under the limited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. 08-10537

incorrect facts when it imposed his sentence, and imposed an unreasonable
sentence, which was 375% greater than the top of the guidelines range.
      Under the discretionary sentencing system established by United States
v. Booker, 543 U.S. 220 (2005), district courts retain the duty to properly
calculate and consider the applicable sentencing range under the Sentencing
Guidelines, along with the sentencing factors set forth in 18 U.S.C. § 3553(a),
when fashioning a sentence. United States v. Mares, 402 F.3d 511, 518-19 (5th
Cir. 2005).     When reviewing a sentence, appellate courts review for
reasonableness, applying an abuse of discretion standard of review. See Gall v.
United States, 128 S. Ct. 586, 597 (2007). The court of appeals first inquires
whether the district court committed procedural error. Id. Then, if the sentence
imposed is procedurally sound, the reviewing court inquiries whether the
sentence is substantively reasonable. Id.
      The district court’s choice of sentence was based on its belief that the
recommended guidelines range did not properly account for several of the
§ 3553(a) factors. Specifically, the district court felt that the sentencing goals of
deterrence and protecting the public were not satisfactorily met by the
recommended sentence, nor did this sentence adequately account for the severity
of the offense or promote respect for the law. The district court also voiced its
concern for Lozano-Estrada’s criminal history, particularly his prior illegal
reentry offenses, DWI convictions, and public intoxication convictions. As for
Lozano-Estrada’s prior illegal reentry offenses, the district court focused on the
fact that Lozano-Estrada showed the propensity to illegally reenter the United
States, not whether he was deported or voluntary departed. These reasons are
both proper and sufficient to support the district court’s choice of sentence. See
United States v. Bonilla, 524 F.3d 647, 657-58 (5th Cir. 2008), cert. denied, ___
S. Ct. ___, 2009 WL 56319 (2009).
      To the extent Lozano-Estrada argues that the district court procedurally
erred when it failed to provide him with notice before imposing an above-

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guidelines sentence, this issue is foreclosed. This court has held that the district
court may impose a non-guideline sentence without advance notice to the
defendant. United States v. Mejia-Huerta, 480 F.3d 713, 722-23 (5th Cir. 2007).
The Supreme Court has reached the same conclusion. Irizarry v. United States,
128 S. Ct. 2198, 2200-04 (2008).
      Lastly, Lozano-Estrada’s sentence of 60 months of imprisonment is less
than the statutorily authorized sentence of 120 months of imprisonment.
Further, the extent of the variance is consistent with other sentences that this
court has affirmed. See United States v. Brantley, 537 F.3d 347, 348-50 (5th Cir.
2008); United States v. Saldana, 427 F.3d 298, 312-13 (5th Cir. 2005).
      In light of the record and the deference that this court affords to the
district court’s findings, the district court did not abuse its discretion when it
concluded that a non-guidelines 60-month sentence was reasonably necessary
to achieve the objectives of § 3553(a). See United States v. Williams, 517 F.3d
801, 812-13 (5th Cir. 2008). Accordingly, the judgment of the district court is
AFFIRMED.




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