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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-50667

Summary Calendar

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

United States Court of Appeals

Fifth Circuit

F I L E D

April 20, 2010

Lyle W. Cayce

Clerk

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No. 09-50667

2

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,

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3

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.

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