United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 24, 2006
Charles R. Fulbruge III
Clerk
No. 05-50338
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HECTOR I. VILLA, III,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:04-CR-579-2
--------------------
Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Appellant Hector I. Villa, III, challenges his sentence for
conspiracy to commit mail fraud under 18 U.S.C. §§ 371 & 1341.
First, he asserts that the district court abused its discretion
in departing upward from the guideline sentencing range because
it based the departure upon the same factors it used to calculate
the sentencing range. We find no abuse of discretion because
§ 5K2.0(a)(3) of the Guidelines allows a departure based upon
factors that were used to determine the guideline range when, as
*
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this opinion should not be published and is not precedent except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.
No. 05-50338
-2-
here, such factors were present to a degree “substantially in
excess” of that which is normally involved in the type of
offense. In addition, the reasons for the district court’s
departure (1) advance the objectives set forth in 18 U.S.C.
§ 3553(a)(2); (2) are authorized by 18 U.S.C. § 3553(b); and
(3) are justified by the facts of the case. See United States v.
Saldano, 427 F.3d 298, 310 (5th Cir.), cert. denied, 126 S. Ct.
1097 (2005).
Next Villa asserts that, because the district court erred in
sentencing him above the guideline range, his sentence is
presumptively unreasonable. As stated above, the district court
did not err in departing from the sentencing range.
Finally, Villa asserts for the first time on appeal that the
district court failed to provide advance notice of two of the
seven reasons it relied upon in departing from the guideline
range. We find no plain error because Villa has not established
that the omission affected his substantial rights. The district
court wrote that each of the reasons was adequate to support its
decision to depart from the Guidelines. As such, Villa cannot
establish that a lack of notice on two of the reasons affected
the outcome of the proceeding. See United States v. Mares, 402
F.3d 511, 520-21 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005).
The judgment of the district court is AFFIRMED.