                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                   May 11, 2006

                                                            Charles R. Fulbruge III
                                                                    Clerk
                             No. 05-40903
                           Summary Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

ROBERTO ABURTO,

                                      Defendant-Appellant.

                       --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                      USDC No. 1:04-CR-760-1
                       --------------------

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     Roberto Aburto appeals his sentence for (1) possessing a

counterfeit social security card with intent to sell;

(2) transferring a false United States identification document;

and (3) possessing a false United States document-making

implement with the intent that such implement would be used in

the production of false United States identification documents.

He argues that the district court’s upward departure was an abuse

of discretion.    He asserts that the district court’s sentence was

     *
        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that this opinion should not be published and is not precedent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. 05-40903
                                -2-

unreasonable, even though the Guidelines are advisory after

United States v. Booker, 543 U.S. 220 (2005), because the

district court relied on an impermissible factor, its subjective

disagreement with the Guidelines.   Aburto contends that his

sentence should be vacated and that this matter should be

remanded to the district court for resentencing because he was

prejudiced since the court’s “disagreement with the Guidelines

was determinative in making its sentencing decision.”     He also

argues that this matter should be assigned to a different judge

on remand because of the district court’s subjective

dissatisfaction with the Guidelines.

     After Booker, this court continues to review a district

court’s interpretation and application of the Guidelines de novo

and its factual findings for clear error.   See United States v.

Villanueva, 408 F.3d 193, 202-04 (5th Cir.), cert. denied, 126

S. Ct. 268 (2005).   Upward departures are reviewed for

reasonableness, which entails review of “the district court’s

decision to depart upwardly and the extent of that departure for

abuse of discretion.”   United States v. Zuniga-Peralta, ___ F.3d

___, No. 04-50575, 2006 WL 522459, at *1 (5th Cir. Mar. 6, 2006)

(internal quotation marks and citation omitted).   An upward

departure is not an abuse of the district court’s discretion when

it (1) “advance[s] the objectives set forth in 18 U.S.C.

§ 3553(a)(2)”; and (2) is “justified by the facts of the case.”

Id. at *2 (internal quotation marks and citation omitted).
                             No. 05-40903
                                  -3-

     Because the district court enhanced Aburto’s sentence

pursuant to U.S.S.G. §§ 5K2.0 & 5K2.14, the sentence was a

guideline sentence.    See United States v. Smith, 440 F.3d 704,

707 (5th Cir. 2006).    “The record . . . makes abundantly clear,

through the court’s adoption of the PSR, its statements at

sentencing, and its Statement of Reasons, the reasons for an

upward departure.”    Zuniga-Peralta, 2006 WL 522459, at *2.   The

district court did not abuse its discretion or consider an

improper factor when it upwardly departed.    Given the court’s

reasons for the upward departure, the extent of the departure was

not unreasonable.     See United States v. Simkanin, 420 F.3d 397,

419 (5th Cir. 2005), petition for cert. filed (Jan. 25, 2006)

(No. 05-948); United States v. Smith, 417 F.3d 483, 492-93 (5th

Cir.), cert. denied, 126 S. Ct. 713 (2005).

     Because we affirm the district court’s judgment, Aburto’s

argument that this matter should be assigned to a different judge

on remand is moot.

     Accordingly, the judgment of the district court is AFFIRMED.
