* 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should not be published and is not precedent except under the limited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. 07-10368

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

FRANCISCO LUNA-BUSTAMANTE

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 6:06-CR-53-ALL

Before WIENER, GARZA, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Francisco Luna-Bustamante (“Luna”) appeals his

sentence for illegal reentry after deportation, in violation of 8 U.S.C. § 1326.

Luna pleaded guilty to this offense. The District Court imposed a nonGuidelines sentence requiring Luna to serve 84 months of imprisonment and

three years of supervised release. The 84-month sentence is 27 months above

the advisory sentencing range.

United States Court of Appeals

Fifth Circuit

F I L E D

November 7, 2007

Charles R. Fulbruge III

Clerk
No. 07-10368

2

We conduct a de novo review of the District Court’s application of the

Sentencing Guidelines (“Guidelines”). United States v. Sanchez-Ramirez, 497

F.3d 531, 534 (5th Cir. 2007) (citations omitted). We review a sentence for

unreasonableness. Id.(citations omitted). When a District Court imposes a nonGuidelines sentence, “we conduct our reasonableness review through an abuseof-discretion lens... .” Id. (citations omitted). In this case, we find that the

District Court’s non-Guidelines sentence was reasonable. 

Luna contends that his non-Guidelines sentence was unreasonable

because it was based on the District Court’s disagreement with the policies

underlying the Guidelines and because, in imposing it, the District Court

considered his criminal history, a factor already accounted for in the Guidelines.

Contrary to Luna’s contention, “criminal history is one ofthe factors that a court

may consider in imposing a non-Guideline sentence.” United States v. Smith,

440 F.3d 704, 709 (5th Cir. 2006). The District Court made several findings

concerningLuna’s criminal history, specifically that he lacked respect for the law

and had received lenient sentences for four prior convictions: one for aggravated

assault with a deadly weapon and three for driving while intoxicated

(“DWI”)——all while in the United States illegally. In increasing Luna’s

sentence based on these factors, the District Court adhered to the policies

underlying the Guidelines which contemplate increased sentences where a

defendant has received unduly lenient sentences in the past. See U.S.S.G.

§ 4A1.3, cmt. (background). Thus, there is no merit to Luna’s contention that the

District Courtincreased his sentence based on its disagreement with the policies

underlying the Guidelines. Indeed, in light of the District Court’s specific

findings, the non-Guidelines sentence was reasonable.

Luna also contends that, pursuant to a discussion of general sentencing

procedures set forth in Rita v. United States, 127 S. Ct. 2456, 2465 (2007), the

District Court was required to provide notice that it intended to impose a nonGuidelines sentence before doing so. Luna’s argument rests on dicta in Rita,
No. 07-10368

3

which did not involve a departure or a variance and did not overrule this court’s

holding in United States v. Mejia-Huerta, 480 F.3d 713, 716 (5th Cir. 2007),

petition for cert. filed, (Apr. 18, 2007) (No. 06-1381),that a sentencing court need

not provide pre-sentencing notice of its intention to impose a non-Guidelines

sentence. Accordingly, the District Court did not err.

Finally, in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Luna

raises a separate challenge to the constitutionality of treating prior felony and

aggravated felony convictions as sentencing factors pursuant to 8 U.S.C. § 1326

rather than as elements of the offense that must be found by a jury. We have

held that this issue is “fully foreclosed from further debate.” United States v.

Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), petition for cert. filed, (Aug.

28, 2007) (No. 07-6202). Luna admits as much in his brief noting that this “issue

is raised solely to preserve it for further review.”

In light of the foregoing, we find that Luna’s non-Guidelines sentence was

reasonable. See United States v. Smith, 440 F.3d 704, 708-09 (5th Cir. 2006).

The judgment of the District Court is AFFIRMED.