     Case: 09-50667     Document: 00511085228          Page: 1    Date Filed: 04/20/2010




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

                                                  FILED
                                                                            April 20, 2010
                                     No. 09-50667
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

JOSE MANUEL OLIVO-SALAZAR, also known as Jose Manuel Olivo-Salazar,
also known as Jose Manuel Renteria,

                                                   Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:08-CR-1198-1


Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Jose Olivo-Salazar pled guilty to illegal reentry into the United States
following deportation. See 8 U.S.C. § 1326. On appeal, he contends that his
seventy-two month sentence is greater than needed to satisfy federal sentencing
goals. We disagree and AFFIRM.
        A district court may impose three types of sentences: “(1) a sentence
within a properly calculated Guideline range; (2) a sentence that includes an


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-50667      Document: 00511085228 Page: 2     Date Filed: 04/20/2010
                                   No. 09-50667

upward or downward departure as allowed by the Guidelines, which sentence
is also a Guideline sentence; or (3) a non-Guideline sentence which is either
higher or lower than the relevant Guideline sentence.”          United States v.
Tzep-Mejia, 461 F.3d 522, 525 (5th Cir. 2006).         Sentencing decisions are
ordinarily reviewed for abuse of discretion. See United States v. Rowan, 530
F.3d 379, 381 (5th Cir. 2008).
      The district court did not classify Olivo-Salazar’s above-Guidelines
sentence as either a departure or a variance. However, the district court’s
statement that the advisory range was inadequate in view of Olivo-Salazar’s
history of progressively more serious crimes indicates that the court was
departing pursuant to U.S.S.G. § 5K2.0(a), which authorizes a departure if the
court finds an “aggravating circumstance, of a kind, or to a degree, not
adequately taken into consideration by the Sentencing Commission. . . .” Cf.
United States v. Rodriguez, 553 F.3d 380, 396 (5th Cir. 2008).
      The first step in reasonableness review is ensuring that the district court
did not commit significant procedural error. Rowan, 530 F.3d at 381. If the
sentence is procedurally sound, the appellate court must then consider the
sentence’s “substantive reasonableness.” Id. Given that Olivo-Salazar does not
question the procedural soundness of his sentence, however, we need only
consider the sentence’s substantive reasonableness.
      Because Olivo-Salazar did not specify why he objected to the sentence
imposed, there may be some basis to debate whether he is entitled to review for
abuse of discretion or merely for plain error. See United States v. Peltier, 505
F.3d 389, 391-92 (5th Cir. 2007). But as Olivo-Salazar is unable to show that his
sentence is infirm even under an abuse of discretion standard, it is unnecessary
to decide which standard applies. See United States v. Rodriguez, 523 F.3d 519,
525 (5th Cir. 2008).
      If a district court determines “that a sentence within the Guidelines range
is not lengthy enough to serve the objectives of sentencing” in a particular case,

                                        2
   Case: 09-50667    Document: 00511085228 Page: 3        Date Filed: 04/20/2010
                                 No. 09-50667

it may sentence above that range. United States v. Williams, 517 F.3d 801, 809
(5th Cir. 2008). For a sentence that departs pursuant to the Guidelines, this
court infers that the district court considered all the factors necessary under the
Guidelines for a fair sentence and will rarely conclude that such a sentence is
unreasonable.    See United States v. Rajwani, 476 F.3d 243, 249 (5th Cir.),
modified on other grounds, 479 F.3d 904 (5th Cir. 2007).
      In light of the escalating seriousness of Olivo-Salazar’s criminal behavior,
and giving “due deference to the district court’s” weighing of the Section 3553(a)
factors when sentencing Olivo-Salazar above his Guidelines range, Gall, 552
U.S. at 51, neither the fact of the departure from that range nor the extent of it
is unreasonable. See United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006)
(noting that both the decision to depart and the extent of a departure must be
reviewed). Olivo-Salazar’s seventy-two month sentence is well within the ten
year statutory maximum term. See 8 U.S.C. § 1326(b)(1). We have approved far
greater upward departures than the additional nine months—which is less than
fifteen percent greater than the top of his Guidelines range—that Olivo-Salazar
received. See, e.g., United States v. Davenport, 286 F.3d 217, 221 (5th Cir. 2002).
      AFFIRMED.




                                        3
