* 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should not be published and is not precedent except under the limited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. 07-10595

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

ALVARO PARDO-LUENGAS

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 1:06-CR-64-ALL

Before JONES, Chief Judge, and STEWART and OWEN, Circuit Judges.

PER CURIAM:*

Alvaro Pardo-Luengas (Pardo) appeals the 60-month sentence imposed

following his guilty plea conviction of illegal reentry after deportation. Pardo

argues that the district court erred by imposing an upward variance from the

guidelines sentencing range of 30-37 months of imprisonment without

calculating a departure under U.S.S.G. § 4A1.3. He contends that this was

procedurally unreasonable. Pardo also asserts that the sentence imposed was

substantively unreasonable because the district did not calculate the correct

guidelines range, given the omission of the § 4A1.3 departure; too much weight

United States Court of Appeals

Fifth Circuit

F I L E D

November 17, 2008

Charles R. Fulbruge III

Clerk
No. 07-10595

2

was given to his prior DWI offense and the perception that he had received a

light sentence for it, as well as for his prior theft offenses; and, consequently, the

district court erred in balancing the sentencing factors under 18 U.S.C.

§ 3553(a).

Because the district court imposed a sentence variance, rather than a

departure, § 4A1.3 was inapplicable. See United States v. Mejia-Huerta, 480

F.3d 713, 723 (5th Cir. 2007), cert. denied, 128 S. Ct. 2954 (2008). As in MejiaHuerta, 480 F.3d at 723, the district court’s decision to impose a variance was

not based solely on the underrepresentation of Pardo’s criminal history. Rather,

the district court pointed to Pardo’s recidivism; the need to deter him and to

protect the public, as well as to promote respect for the law; the nature and

characteristics of the offense; and Pardo’s history and characteristics. These

findings are supported by the record, and there is no indication that the district

court’s decision was based disproportionately on Pardo’s prior DWI offense.

Thus, Pardo has not shown that the sentence imposed was unreasonable. See

Gall v. United States, 128 S. Ct. 586, 596-97 (2007); United States v. Mares, 402

F.3d 511, 519-20 (5th Cir. 2005).

Pardo argues that the district court erred under FED. R. CRIM. P. 32 and

Burns v. United States, 501 U.S. 129 (1991), by not providing advance notice of

its consideration of a sentence variance. He concedes that this issue is foreclosed

by our decision in Mejia-Huerta, 480 F.3d at 723. Additionally, the Supreme

Court recently confirmed that such notice is not required. Irizarry v. United

States, 128 S. Ct. 2198, 2202-04 (2008).

In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Pardo challenges

the constitutionality of 8 U.S.C. § 1326(b)’s treatment of prior felony and

aggravated felony convictions as sentencing factors rather than elements of the

offense that must be found by a jury. This argument is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). United States v.
No. 07-10595

3

Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), cert. denied, 128 S. Ct. 872

(2008).

AFFIRMED.