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

                                                FILED
                                                                  November 10, 2009
                                 No. 09-40029
                               Summary Calendar                Charles R. Fulbruge III
                                                                       Clerk

UNITED STATES OF AMERICA,

                                             Plaintiff-Appellee

v.

CARMEN JOSE MARTINEZ, also known as Carmelo Martinez,

                                             Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                          USDC No. 5:08-CR-1495-1


Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
      Carmen Jose Martinez pleaded guilty to being an alien unlawfully found
in the United States following a prior deportation, in violation of 8 U.S.C. § 1326.
He appeals the sentence of 45 months imposed by the district court. The 45-
month sentence was above the advisory guidelines sentencing range of 27 to 33
months. Martinez argues that his sentence was procedurally and substantively
unreasonable.



      *
      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should not be published and is not precedent except under the limited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. 09-40029

      This court reviews sentencing decisions for reasonableness, applying an
abuse-of-discretion standard. United States v. Cisneros-Gutierrez, 517 F.3d 751,
764 (5th Cir. 2008). This standard applies whether the sentence is within or
outside the guidelines range. Id. Appellate courts must first ensure that the
district court did not commit procedural error. Gall v. United States, 128 S. Ct.
586, 597 (2007); Cisneros-Gutierrez, 517 F.3d at 764. If there is no procedural
error, this court then reviews the substantive reasonableness of the sentence.
Gall, 128 S. Ct. at 597; Cisneros-Gutierrez, 517 F.3d at 764.
      Although the reasonableness of a sentence is ordinarily reviewed for an
abuse of discretion, plain error review applies if the defendant fails to object in
district court. See United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th
Cir. 2009), cert. denied, 2009 U.S. Lexis 6109 (U.S. Oct. 5, 2009). To show plain
error, the appellant must show a forfeited error that is clear or obvious and that
affects his substantial rights. Puckett v. United States, 129 S. Ct. 1423, 1429
(2009). If the appellant makes such a showing, this court has the discretion to
correct the error but only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Id.
      Martinez asserts that the district court committed procedural error by
failing to properly weigh the § 3553(a) factors. Because Martinez did not object
to procedural error in the district court, this issue is reviewed for plain error.
See Mondragon-Santiago, 564 F.3d at 361.
      The record reflects that the district court considered the history and
characteristics of the defendant; the need for the sentence to promote respect for
the law; the need for the sentence to afford adequate deterrence to criminal
conduct; and the need for the sentence to protect the public from further crimes
of the defendant. The record therefore shows that the district court carefully
considered and weighed the § 3553(a) factors at sentencing.            Accordingly,
Martinez has failed to demonstrate that the district court plainly erred in
weighing the § 3553(a) factors. See Mondragon-Santiago, 564 F.3d at 361.

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                                  No. 09-40029

      Martinez also contends that his sentence is substantively unreasonable
because the above-guidelines sentence is greater than necessary to advance the
sentencing goals of § 3553(a). Because Martinez preserved this issue in the
district court, his substantive reasonableness argument is reviewed under an
abuse of discretion standard. See Gall, 128 S. Ct. at 597.
      The district court articulated numerous grounds under § 3553(a) for the
upward variance, the non-guidelines sentence was less than the statutory
maximum sentence of twenty years under § 1326(a) and (b)(2), and the extent
of the variance from a guidelines range of 27-33 months to a sentence of 45
months is well within the range of variances this court has upheld. See United
States v. Brantley, 537 F.3d 347, 348-50 (5th Cir. 2008); United States v.
Herrera-Garduno, 519 F.3d 526, 530-32 (5th Cir. 2008); United States v. Smith,
440 F.3d 704, 708-10 (5th Cir. 2006). In light of the foregoing, the district court
did not abuse its discretion in imposing the sentence.
      Martinez has failed to show that his sentence is procedurally or
substantively unreasonable.     See Gall, 128 S. Ct. at 597.     Accordingly, the
district court’s judgment is AFFIRMED




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