                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   July 10, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 05-40305
                         Summary Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

JORGE RIOS-JOAQUINA,

                                     Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                     USDC No. 4:04-CR-108-ALL
                       --------------------

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Jorge Rios-Joaquina (Rios) appeals the 60-month sentence

that he received after he pleaded guilty to illegal reentry by a

deported alien.   Rios argues that the district court violated his

due process rights when it upwardly departed without stating on

the record that aggravating or mitigating circumstances were

present that had not been considered by the Sentencing Commission

when it formulated the Guidelines.   Rios argues, alternatively,




     *
       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this opinion should not be published and is not precedent except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. 05-40305
                                -2-

that if United States v. Booker, 543 U.S. 220 (2005), applies,

the upward departure was unreasonable.

     Rios fails to meet his burden of showing that the district

court’s post Booker, non-guidelines sentence, which was an upward

deviation from the guidelines range of imprisonment, was error,

plain or otherwise.   See United States v. Jones, 444 F.3d 430,

434-36 (5th Cir. 2006); United States v. Smith, 440 F.3d 704,

707-10 (5th Cir. 2006).

     AFFIRMED.
