                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   May 2, 2007

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 06-41030
                         Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

GRACIELA GONZALEZ-ZUNIGA,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 2:05-CR-735-1
                      --------------------

Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.

PER CURIAM:*

     Graciela Gonzalez-Zuniga (Gonzalez) pleaded guilty to

unlawful transportation of an alien within the United States, in

violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and (B)(ii).      Based on

an offense level of 10 and a criminal history category of I,

Gonzalez’s guideline range of imprisonment was 6 to 12 months.

The district court determined that the Guidelines did not

adequately reflect the nature of Gonzalez’s crime or her prior

criminal activity.   Using an offense level of 10 and a criminal

history category of VI, the district court sentenced Gonzalez to

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this opinion should not be published and is not precedent except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

30 months of imprisonment.    At the sentencing hearing, the

district court stated that it was imposing an upward departure.

In its statement of reasons, however, the district court

characterized the sentence as a non-guideline sentence.

     Gonzalez contends that the sentence is unreasonable.      She

argues that the district court failed to follow the appropriate

methodology for upwardly departing.    She also argues that the

district court erred by failing to properly consider the

objective of avoiding unwarranted sentencing disparity.

     Gonzalez did not make these arguments in the district court.

Her arguments may therefore be subject to plain error review, see

United States v. Castillo, 430 F.3d 230, 241-42 (5th Cir. 2005),

rather than the reasonableness standard that governs sentences

post-United States v. Booker, 543 U.S. 220 (2005).     See United

States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006).     We need not

decide which standard applies, however, because we conclude that

Gonzalez’s sentence was proper under either standard.

     The district court relied upon 18 U.S.C. § 3553(a)(1),

(a)(2)(A), and (a)(2)(B) at the sentencing hearing and in the

statement of reasons.   At the sentencing hearing, where the

district court stated that it was imposing an upward departure,

the district court determined that the Guidelines did not

adequately reflect the § 3553(a) sentencing factors.    The

district court analyzed the facts, the nature and circumstances

of the offense, Gonzalez’s history and characteristics, and an
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inability of the system to deter Gonzalez’s criminal conduct.

The district court stated that it was considering the other

criminal categories and provided explicit reasons for using

category VI rather than category I.   Although in a “very narrow

class of cases” more detail may be required, United States v.

Lambert, 984 F.2d 658, 663 (5th Cir. 1993) (en banc), this court

has affirmed significant departures in other cases where explicit

consideration was not given to each criminal history category.

See United States v. Ashburn, 38 F.3d 803, 809 (5th Cir. 1994)

(en banc); United States v. McKenzie, 991 F.2d 203, 204-06 (5th

Cir. 1993).   Because the basis for the district court’s ruling is

thoroughly stated in the record, Gonzalez’s case does not fall

into the narrow range of cases where explicit detail is required

regarding the district court’s rejection of the intervening

criminal history categories.

     Gonzalez also argues in her attack on the upward departure

that the district court failed properly to consider the objective

of avoiding unwarranted sentencing disparity.   As Gonzalez fails

to explain why her sentence is disparate from others with similar

records who have been found guilty of similar conduct, see

§ 3553(a)(6), she has failed to establish that the district court

erred in its consideration of this sentencing factor.

     The district court’s reasons for departing advance the

objectives set forth in § 3553(a) and are justified by the facts

of this case.   The departure therefore resulted in a reasonable
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                                -4-

sentence.   United States v. Zuniga-Peralta, 442 F.3d 345, 347

(5th Cir. 2006), cert. denied, 126 S. Ct. 2954 (2006).

     To the extent Gonzalez’s sentence is considered a non-

guideline sentence as indicated by the statement of reasons, the

district court adequately complied with the procedure set forth

in United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006).

Moreover, the district court’s rationale was explicit enough for

this court to determine that the § 3553(a) factors support the

sentence and that the district court adequately balanced the

§ 3553(a) factors.   See id. at 707-08.   Because “the court’s

findings in support of the upward variance sufficiently

demonstrate that the substance of the sentence is reasonable

under § 3553(a),” id. at 710, the district court did not err in

the imposition of a non-guideline sentence.

     Because Gonzalez’s sentence was reasonable either as a

Guideline sentence with an upward departure or as a non-Guideline

sentence, the district court’s judgment is AFFIRMED.
