* 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should not be published and is not precedent except under the limited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. 08-40058

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

GILBERTO JOSE RODRIGUEZ

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:07-CR-459-1

Before JONES, Chief Judge, and DENNIS and HAYNES, Circuit Judges.

PER CURIAM:*

Gilberto Jose Rodriguez pleaded guilty to one count of transporting aliens

within the United States and was sentenced to 48 months in prison. On appeal,

Rodriguez argues thatthe district court erred by imposing a sentence which was

above the recommended guidelines range of 24 to 30 months. Rodriguez argues

that the district court failed to state adequate reasons to support the increase.

The sentence imposed by the district court is typically reviewed for

United States Court of Appeals

Fifth Circuit

F I L E D

September 30, 2008

Charles R. Fulbruge III

Clerk
No. 08-40058

2

reasonableness. Gall v. United States, 128 S. Ct. 586, 591 (2007). The Supreme

Court rejected the notion that the district court needs extraordinary

circumstances to justify a deviation from the guidelines range. See Gall,

128 S. Ct. at 595. A district court, in sentencing, should use the guidelines

sentence range as “the starting point and the initial benchmark” but should then

consider all of the sentencing factors set forth in 18 U.S.C. § 3553(a). Gall,

128 S. Ct. at 596. If the court concludes that a sentence outside the Guidelines

is warranted, it “must consider the extent of the deviation and ensure that the

justification is sufficiently compelling to support the degree of the variance.”

Gall, 128 S. Ct. at 597. “After settling on the appropriate sentence, [the

sentencing court] must adequately explain the chosen sentence to allow for

meaningful appellate review and to promote the perception of fair sentencing.”

Id.

Rodriguez does not challenge the district court’s calculation of the

appropriate advisory guideline range or in the factual recitation of his criminal

history. Rodriguez also does not assert that the district court did not specifically

consider § 3553(a) in imposing the departure. The district court’s decision to

vary from the recommended guidelines was based on the finding that

Rodriguez’s history of violent crime and drug trafficking showed that he “has no

respect for the law.” Specifically, the district court noted the history of two

drive-by shootings and found that “the guidelines do not capture the cowardly,

deadly behavior of this defendant thatindicates he is perfectly capable of taking

human life if somebody gets in the way of one of his bullets that he shoots at a

place of habitation. . .” Given the facts of this case and the district court’s

reasons for departing, Rodriguez has not shown that the district court abused

its discretion in imposing a sentence that was 18 months greater than 30

months, which was the top of the recommended guidelines range. See Gall,

128 S. Ct. at 597.

Rodriguez’s sentence is AFFIRMED.
No. 08-40058

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