United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 28, 2006
Charles R. Fulbruge III
Clerk
No. 05-20991
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS ANTONIO MONTES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:05-CR-199
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Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Luis Antonio Montes appeals the sentence imposed following
his guilty plea to illegal reentry. He argues that the district
court’s 15-month upward departure was plainly unreasonable. We
need not decide whether Montes’ sentence was a Guidelines or non-
Guidelines sentence because, in either case, his sentence was not
plainly unreasonable. See United States v. Jones, 444 F.3d 430,
441 (5th Cir.), cert. denied, 126 S. Ct. 2958 (2006).
If the district court imposed a Guidelines sentence, the
nature of Montes’ prior offense and the six-month period within
*
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this opinion should not be published and is not precedent except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. 05-20991
-2-
which he reoffended after deportation were factors present to an
exceptional degree warranting a departure, even if the period
within which he reoffended had already been taken into
consideration when calculating his criminal history score. See
United States v. Saldana, 427 F.3d 298, 309-10 (5th Cir.), cert.
denied, 126 S. Ct. 810 (2005). If the district court instead
imposed a non-Guidelines sentence, it used the advisory guideline
range as a reference, and it’s reasons for the departure were
fact specific and consistent with the directives of 18 U.S.C.
§§ 3553(a)(1), (2)(A) that in determining the sentence to impose,
the court “consider . . . the nature and circumstances of the
offense and the history and characteristics of the defendant” and
“promote respect for the law.” See United States v. Smith, 440
F.3d 704, 707 (5th Cir. 2006). Consequently, the decision to
upwardly depart from the advisory range was not plain error under
either scenario.
Montes’ reliance on United States v. Lambert, 984 F.2d 658
(5th Cir. 1993) (en banc), for the proposition that the extent of
the departure was plainly unreasonable is unpersuasive. The
record does not support a determination that the district court
upwardly departed pursuant to U.S.S.G. § 4A1.3, and Lambert is
therefore inapposite. Finally, we reject Montes’ contention that
the district court’s written reasons for the departure were
insufficient. By specifying that Montes returned to the United
No. 05-20991
-3-
States illegally within six months of being deported, the court
adequately complied with 18 U.S.C. § 3553(c)(2).
AFFIRMED.