IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 28, 2009
No. 08-50841
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
RENE LEMUS-VASQUEZ
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:08-CR-93-ALL
Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
Rene Lemus-Vasquez appeals his 27-month sentence following his
conviction, upon a plea of guilty, for illegal reentry after deportation. He argues
that his non-Guidelines sentence is unreasonable because it is greater than
necessary to satisfy the sentencing goals of 18 U.S.C. § 3553(a). Vasquez avers
that the district court erred in justifying the upward variance on its conclusion
that the eight-level aggravated-felony increase under U.S.S.G. § 2L1.2(b)(1)(C)
was not sufficient to capture the seriousness of the prior offense. He essentially
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-50841
argues that the fact of the prior offense was already accounted for by the
Guidelines by the application of the eight-level increase and could not serve as
the basis for the district court’s decision to vary upward, and that the court
failed to take into account his personal circumstances.
As Vasquez has not argued that procedural error exists, this court
considers the substantive reasonableness of the sentence under the abuse-of-
discretion standard. 1 The district court properly used the unchallenged
guidelines range as the starting point and initial benchmark. The district court
then properly considered the sentencing factors of § 3553(a), including Vasquez’s
personal history and characteristics. The district court was not precluded from
imposing a departure or variance based on factors that the Guidelines had
already taken into account.2 Moreover, the extent of the variance is consistent
with other sentences that this court has affirmed.3
The judgment of the district court is AFFIRMED.
1
See Gall v. United States, 128 S. Ct. 586, 597 (2007).
2
See United States v. Brantley, 537 F. 3d 347, 350 (5th Cir. 2008); United
States v. Williams, 517 F.3d 801, 810-11 (5th Cir. 2008).
3
See, e.g., Brantley, 537 F.3d at 348-50; United States v. Saldana, 427 F.3d
298, 311-13 (5th Cir. 2005).
2