                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4107


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

JOSE ALVARADO-IBANEZ, a/k/a Jose Saucedo-Rios, a/k/a Ramon
Garcia-Perez, a/k/a Manuel Angel Perez,

                  Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.   Louise W. Flanagan,
Chief District Judge. (5:07-cr-00206-FL-1)


Submitted:    January 14, 2009              Decided:   February 4, 2009


Before MICHAEL, KING, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant.   George E. B. Holding, United States Attorney, Anne
M. Hayes, Jennifer P. May-Parker, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               Jose       Alvarado-Ibanez      pled   guilty       to   illegal    reentry

into the United States after deportation, 8 U.S.C. § 1326(a),

(b)(2) (2006), and was sentenced to a term of ninety-six months

imprisonment.              Alvarado-Ibanez         argues     on     appeal      that     his

sentence is unreasonable because the district court’s departure

above the guideline range pursuant to U.S. Sentencing Guidelines

Manual        (USSG)       § 4A1.3(a)      (2007)     was     unwarranted         and     the

departure from criminal history category V to VI was excessive.

We affirm.

               Alvarado-Ibanez had 11 criminal history points, which

placed him in criminal history category V.                           He had previously

been deported twelve times and had used forty-seven aliases.

The sentences for ten of his prior convictions, including three

for illegal reentry, as well as seven felony convictions for

burglary, receiving stolen property, and a drug offense, were

too    old     to    be    counted    in     his   criminal    history.          See     USSG

§ 4A1.2(e).

               The     district      court    determined      that      a    departure    was

warranted       because       Alvarado-Ibanez’s        record        indicated     a     high

likelihood that he would again enter the country illegally and

that     he    would       commit     additional      crimes.           In    making     this

determination, the court considered his record of recidivism and



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uncounted prior sentences, as well as the sentencing factors set

out under 18 U.S.C. § 3553(a) (2006).

               We review a sentence for abuse of discretion.                                 See

Gall v. United States, ___ U.S. ___, 128 S. Ct. 586, 597 (2007).

First,    we     must    “ensure    that     the      district         court    committed        no

significant procedural error,” including improperly calculating

the    Guidelines       range,     not   considering             the   § 3553(a)       factors,

relying     on    clearly       erroneous    facts,         or    giving       an   inadequate

explanation for the sentence.                    Id. at 597;             United States v.

Osborne, 514 F.3d 377, 387 (4th Cir.), cert. denied, 128 S. Ct.

2525 (2008).       We then consider the substantive reasonableness of

the sentence imposed, “tak[ing] into account the totality of the

circumstances, including the extent of any variance from the

Guidelines range.”          Gall, 128 S. Ct. at 597.                    If the sentence is

outside the guideline range, we “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.

               Under USSG § 4A1.3, a district court may depart upward

from   an   applicable          Guidelines      range       if    “reliable         information

indicates        that     the     defendant’s          criminal         history        category

substantially           under-represents              the        seriousness          of     the

defendant’s        criminal       history        or      the      likelihood         that    the

defendant will commit other crimes . . . .”                              USSG § 4A1.3(a).

In deciding whether a departure is warranted under § 4A1.3, a

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sentencing court may consider prior sentences for similar, or

serious      dissimilar,       criminal          conduct       not     counted       in     the

defendant’s criminal history because the sentence is outside the

applicable       time    period.     USSG        § 4A1.2,       comment.       n.8.        The

district court decided that Alvarado-Ibanez’s long history of

illegally entering the United States and committing crimes while

in    this   country     established     a       high    likelihood         that    he    would

illegally reenter again after his release from custody.                                     The

court     also      considered      Alvarado-Ibanez’s                many    serious       but

uncounted      felony    convictions.            We     conclude      that    the     court’s

decision to depart under § 4A1.3 and its one-category departure

from category V to category VI was factually supported and that

the    resulting     sentence      was   reasonable.            Moreover,          the    court

adequately explained its reasons for the departure.

               We   therefore      affirm        the    sentence       imposed       by    the

district     court.       We   dispense      with       oral   argument       because      the

facts    and     legal   contentions      are      adequately         presented       in   the

materials      before    the    court    and       argument      would       not    aid    the

decisional process.

                                                                                    AFFIRMED




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