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should not be published and is not precedent except under the limited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. 09-10449

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

SERAFIN LOPEZ-TOVAR,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 5:08-CR-77-1

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

Serafin Lopez-Tovar appeals the 24-month sentence imposed following his

guilty-plea conviction for illegal reentry after deportation in violation of 8 U.S.C.

§ 1326. He contends that the district court erred by sentencing him above the

applicable 2-8 month guidelines range because the court based the upward

variance on its disagreement with the exclusion by the Sentencing Guidelines

of his aged convictions from his criminal history score.

United States Court of Appeals

Fifth Circuit

F I L E D

November 23, 2009

Charles R. Fulbruge III

Clerk
No. 09-10449

2

Although post-Booker, the Sentencing Guidelines are advisory only, and

an ultimate sentence is reviewed for reasonableness under an abuse-ofdiscretion standard, the district court must still properly calculate the guidelinesentencing range for use in deciding on the sentence to impose. Gall v. United

States, 552 U.S. 38, 128 S. Ct. 586, 596 (2007). We conduct the reasonableness

review in the light of the sentencing factors in 18 U.S.C. § 3553(a). United

States v. Mares, 402 F.3d 511, 519-20 (5th Cir. 2005). If, as in this instance, a

defendant does not challenge the procedural correctness of the sentence, we may

proceed to an examination of the substantive reasonableness of the sentence, see

United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008), under the abovementioned abuse-of-discretion standard. See Gall, 128 S. Ct. at 597.

The district court imposed a non-guidelines sentence above the applicable

guidelines range. The selection of a non-guidelines sentence is within the

discretion of the district court. Id. This court “must give due deference to the

district court’s decision that the § 3553(a) factors, on a whole, justify the extent

of the variance.” Id. “A non-Guideline sentence unreasonably fails to reflect the

statutory sentencing factors where it (1) does not account for a factor that should

have received significant weight, (2) gives significant weight to an irrelevant or

improper factor, or (3) represents a clear error of judgment in balancing the

sentencing factors.” United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006).

The district court explained that it imposed an upward variance from the

recommended guidelines range because Lopez-Tovar had a “serious criminal

history,” including six convictions that did not receive criminal history points

under the Guidelines. The district court noted that three of his convictions were

for driving while intoxicated and that, all together, he had nine prior convictions.

The district court further explained that it had considered the § 3553(a) factors,

including the nature and circumstances of the offense, the history and

characteristics of the defendant, the need to promote respect for the law, the
No. 09-10449

3

need to afford adequate deterrence to further criminal conduct, and the need to

protect the public from further crimes by the defendant.

The district court’s upward variance from the guidelines maximum of

8 months to a sentence of 24 months was not unreasonable. See Brantley, 537

F.3d at 348-50 (variance from the guidelines maximum of 51 months to a

sentence of 180 months deemed reasonable); United States v. Saldana, 427 F.3d

298, 312 (5th Cir. 2005) (noting that although the “district court quadrupled the

maximum sentence allowable for [the defendant] under the Guidelines,” the

sentence was reasonable); United States v. Smith, 417 F.3d 483, 492-93 (5th Cir.

2005) (upholding departure of almost 300% from guidelines range maximum of

41 months to 120 months). The district court’s judgment is AFFIRMED.