* 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should not be published and is not precedent except under the limited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. 07-20903

consolidated with

No. 07-41248

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

ISAEL SOBERANIS-GOMEZ

Defendant-Appellant

Appeals from the United States District Court

for the Southern District of Texas

USDC No. 4:07-CR-304-ALL

USDC No. 2:03-CR-79-4

Before DAVIS, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

Isael Soberanis-Gomez appeals the sentences imposed following his

conviction for unlawfully transporting aliens within the United States in

violation of 8 U.S.C. § 1324, and the revocation of his supervised release. For the

§ 1324 offense, the district court departed upward to 46 months from the

guidelines range of 24 to 30 months and then imposed a consecutive nine-month

United States Court of Appeals

Fifth Circuit

F I L E D

October 6, 2008

Charles R. Fulbruge III

Clerk
No. 07-20903 c/w

No. 07-41248

2

term of imprisonment as the revocation sentence. Soberanis-Gomez challenges

the sentence as unreasonable. Finding no error, we affirm.

We review sentences for reasonableness in light ofthe factors set out in 18

U.S.C. § 3553(a), employing an abuse-of-discretion standard. Gall v. United

States, 128 S. Ct. 586, 595; United States v. Williams, 517 F.3d 801, 808 (5th Cir.

2008). Our review is bifurcated; we look first to whether the court committed

procedural error and, if not, to whether the sentence was reasonable. Williams,

517 F.3d at 808. A sentencing court does not abuse its discretion in deciding to

depart upwardly when its reasons for doing so (1) advance the objectives set

forth in § 3553(a)(2); and (2) are justified by the facts of the case. United States

v. Rajwani, 476 F.3d 243, 249-50 (5th Cir. 2007).

The district court’s departure was based on uncharged conduct, specifically

unlawful reentry, which the Government agreed not to pursue as part of

Soberanis-Gomez’s plea agreement. The sentence of 46 months was at the low

end ofthe range that would have applied if Soberanis-Gomez had been convicted

of unlawful reentry. Soberanis-Gomez argues that the district court’s sentence

undermined his plea agreement and ignored the benefits that his early, preindictment plea conferred. He also argues that the court failed to consider his

argument that his criminal history was not substantially under-represented,

given that he received six points for the prior conviction; that there was nothing

extraordinary about his case; and that the sentence imposed was substantially

greater than necessary to satisfy the goals of § 3553(a).

The district court did not err in departing upward based on uncharged

conduct dismissed as part of a plea agreement. See United States v. Newsom,

508 F.3d 731, 734 (5th Cir. 2007); United States v. Ashburn, 38 F.3d 803, 807-08

(5th Cir. 1994) (en banc). Further, the district court noted that it had considered

Soberanis-Gomez’s prior drug conviction, the circumstances of the instant

offense, his personal circumstances, and the factors set out in § 3553(a). The
No. 07-20903 c/w

No. 07-41248

3

court concluded that the case warranted a departure. We find no procedural

error in the decision to depart upward.

With respect to the degree of departure and the sentence as a whole, the

sentence of 46 months did not constitute an abuse of discretion. See Newsom,

508 F.3d at 735. We also reject the argument that the consecutive nine-month

revocation sentence rendered the entire sentence unreasonable. That sentence

was within the guidelines range, and the advisory Guidelines provide for

consecutive sentencing in the revocation context. U.S.S.G. § 7B1.3(f).

The judgment of the district court is AFFIRMED.