A district court does not abuse its discretion when imposing an upward sentence based on the underlying facts of prior convictions that do not technically trigger a specific enhancement.
A defendant convicted of illegal reentry after deportation challenges a 60-month sentence as an unreasonable upward departure from the advisory Guidelines range of 21 to 27 months. The district court imposed the sentence because the defendant's prior convictions, though not qualifying for a specific Guidelines enhancement, involved substantial drug trafficking conduct. The court reviews the sentence under an abuse-of-discretion standard, considering the extent of the deviation from the Guidelines. The appellate court holds that the district court did not abuse its discretion in considering the facts of the prior convictions to justify the variance, as the sentence is commensurate with the individualized reasons provided and falls within the range that would have applied had the enhancement been properly calculated.
At page 531 Permissibility of upward departure from guidelines54 citing casesfinding no abuse of discretion in a 60-month sentence when the top of the advisory range was 27 months
- United States v. Hamm, No. 23-10511 (5th Cir. Dec. 20, 2023).unpublished([A] district court need not recite each of the § 3553(a) factors.)
- United States v. Brown, No. 24-30214 (5th Cir. May 30, 2025).unpublishedA, intro. comment. (“General deterrence of criminal conduct dictates that a clear message be sent to society . . . .).2 The district court also explained that the upward variance was primarily designed to “reflect the seriousness of the of…
- United States v. Cortez-Balderas, 74 F.4th 786 (5th Cir. 2023).publishedEven a significant variance from the Guidelines does not constitute an abuse of discretion if it is “commensurate with the individualized, case-specific reasons provided by the district court.” United States v. McElwee, 646 F.3d 328, 338 (…
- United States v. Bernal, No. 20-50710 (5th Cir. Mar. 12, 2021).unpublishedSee United States v. Key, 599 F.3d 469, 471-72, 475-76 (5th Cir. 2010); United States v. Herrera-Garduno, 519 F.3d 526, 531-32 (5th Cir. 2008); United States v. Smith, 417 F.3d 483, 485, 492 (5th Cir. 2005).
- United States v. Rodolfo Perez-Jimenez, No. 19-10123 (5th Cir. Oct. 24, 2019).unpublishedSee, e.g., Lopez-Velasquez, 526 F.3d at 805 ; United States v. Herrera-Garduno, 519 F.3d 526, 531-32 (5th Cir. 2008).
- United States v. Angela Lee, No. 19-60081 (5th Cir. Sept. 26, 2019).unpublished(collecting cases and affirming a 60-month sentence where the guideline maximum was 27 months)
- United States v. Wilfredo Cuellar-Suazo, 667 F. App'x 431 (5th Cir. 2016).unpublishedSee United States v. Key, 599 F.3d 469, 471-72, 475-76 (5th Cir. 2010); United States v. Herrera-Garduno, 519 F.3d 526, 531-32 (5th Cir. 2008); United States v. Jones, 444 F.3d 430, 433, 441-42 (5th Cir. 2006); United States v. Smith, 417…
- United States v. Alberto Perez-Ortega, 593 F. App'x 382 (5th Cir. 2015).unpublishedSee, e.g., United States v. Key, 599 F.3d 469, 475-76 (5th Cir.2010); United States v. Herrera-Garduno, 519 F.3d 526, 531-32 (5th Cir.2008).
- United States v. David Diehl, 775 F.3d 714 (5th Cir. 2015).published Although the district court did not address in detail each of Diehl’s arguments on the record, “a district court need not recite each of the § 3553(a) factors and explain its applicabil *724 ity.” See United States v. Herrera-Garduno, 519…
- United States v. Santiago Rodriguez-Jaimes, 589 F. App'x 284 (5th Cir. 2015).unpublishedSee, e.g., United States v. Key, 599 F.3d 469, 475-76 (5th Cir.2010); United States v. Herreras-Garduno, 519 F.3d 526, 531-32 (5th Cir.2008).
Show 41 more citing cases
- United States v. Ernesto Fuentes, 775 F.3d 213 (5th Cir. 2014).published (explaining that a district court can impose an upward departure regardless of whether a prior offense technically qualified as a crime of violence)
- United States v. Feliciano Bruno-Sandoval, 584 F. App'x 267 (5th Cir. 2014).unpublishedSee, e.g., United States v. Key, 599 F.3d 469, 475-76 (5th Cir.2010); United States v. Herrera-Garduno, 519 F.3d 526, 531-32 (5th Cir.2008).
- United States v. Melvin Rodriguez, 574 F. App'x 535 (5th Cir. 2014).unpublishedSee Rita, 551 U.S. at 356 , 127 S.Ct. 2456 ; United States v. Herrera-Garduno, 519 F.3d 526, 531 (5th Cir.2008).
- United States v. Ryan Hearn, 570 F. App'x 395 (5th Cir. 2014).unpublishedE.g., Brantley, 537 F.3d at 349-50 ; United States v. Herrera-Garduno, 519 F.3d 526, 531-32 (5th Cir.2008).
- United States v. Luis Torres-Rivera, 560 F. App'x 419 (5th Cir. 2014).unpublishedE.g., *420 Brantley, 537 F.3d at 349-50 ; United States v. Herrera-Garduno, 519 F.3d 526, 531-32 (5th Cir.2008).
- United States v. Nobryan McGee, 559 F. App'x 323 (5th Cir. 2014).unpublished(affirming upward variance from the Guidelines range of 21 to 27 months to 60 months based on the defendant’s criminal history, primarily because the district court disagreed with how drug-trafficking offenses are define…)
- United States v. Benet Schmidt, 552 F. App'x 300 (5th Cir. 2014).unpublished (finding no abuse of discretion in a 60-month sentence when the top of the advisory range was 27 months)
- United States v. Bridgette Cook, 539 F. App'x 476 (5th Cir. 2013).unpublishedSee United States v. Brantley, 537 F.3d 347, 350 (5th Cir.2008); United States v. Herrera-Garduno, 519 F.3d 526, 531 (5th Cir.2008).
- United States v. Prentice Hollingsworth, 536 F. App'x 387 (5th Cir. 2013).unpublishedSee Brantley, 537 F.3d at 348-50 ; United States v. Herrera-Garduno, 519 F.3d 526, 531-32 (5th Cir.2008); United States v. Jones, 444 F.3d 430, 433, 441-42 (5th Cir.2006).
- United States v. David McFadden, 445 F. App'x 746 (5th Cir. 2011).unpublished While “a checklist recitation of the section 3553(a) factors is ... [in]sufficient,” United States v. Smith, 440 F.3d 704, 707 (5th Cir.2006), “a district court need not recite each of the § 3553(a) factors and explain its applicability,”…
- United States v. Wendy Chriss, No. 10-30101 (5th Cir. July 13, 2011).publishedAlthough a 60-month sentence is a substantial deviation from the Guidelines range of 33 to 41 months, it is “commensurate with the individualized, case-specific reasons provided by the 7 No. 10-30099 district court.” United States v. Herre…
- United States v. McElwee, 646 F.3d 328 (5th Cir. 2011).publishedAlthough a 60-month sentence is a substantial deviation from the Guidelines range of 33 to 41 months, it is “commensurate with the individualized, case-specific reasons provided by the district court.” United States v. Herrera-Garduño, 519…
- United States v. Eli Pena, Jr., 402 F. App'x 858 (5th Cir. 2010).unpublished(affirming upward departure from guidebnes range of 21 to 27 months to 60 months when underlying circumstances rendered sentence reasonable)
- United States v. Jose Guerra, 368 F. App'x 569 (5th Cir. 2010).unpublishedUnited States v. Herrera-Garduno, 519 F.3d 526, 531-32 (5th Cir.2008).
- United States v. Leach, 289 F. App'x 793 (5th Cir. 2008).unpublished
- United States v. Gracia-Cantu, 335 F. App'x 434 (5th Cir. 2009).unpublished
- United States v. Kretser, 343 F. App'x 987 (5th Cir. 2009).unpublished
- United States v. Snow, 354 F. App'x 2 (5th Cir. 2009).unpublished
- United States v. Ogbemudia, 364 F. App'x 72 (5th Cir. 2010).unpublished
- United States v. Hector Gonsalez-Juarez, 392 F. App'x 302 (5th Cir. 2010).unpublished
- United States v. Gloria Simmons, 406 F. App'x 829 (5th Cir. 2010).unpublished
- United States v. Isaac McCrumby, 402 F. App'x 961 (5th Cir. 2010).unpublished
- United States v. Oscar Pena, 407 F. App'x 787 (5th Cir. 2011).unpublished
- United States v. Saul Martinez-Mendoza, 420 F. App'x 394 (5th Cir. 2011).unpublished
- United States v. Manuel Borja-Vega, 425 F. App'x 373 (5th Cir. 2011).unpublished
- United States v. Jose Luis-Rodriguez, 427 F. App'x 329 (5th Cir. 2011).unpublished
- United States v. Jose Rodriguez, No. 10-40444 (5th Cir. June 3, 2011).unpublished
- United States v. Jose Amaya-Portillo, 445 F. App'x 789 (5th Cir. 2011).unpublished
- United States v. Tomas Segundo-Espinoza, 449 F. App'x 369 (5th Cir. 2011).unpublished
- United States v. Jose Villalobos, 469 F. App'x 293 (5th Cir. 2012).unpublished
- United States v. Ernesto Garcia-Sandoval, 464 F. App'x 322 (5th Cir. 2012).unpublished
- United States v. Alcides Roman, 542 F. App'x 367 (5th Cir. 2013).unpublished
- United States v. Wayne Turner, 569 F. App'x 225 (5th Cir. 2014).unpublished
- United States v. Alvie Spohr, Jr., 582 F. App'x 298 (5th Cir. 2014).unpublished
- United States v. Carlos Cruz-Reyes, 602 F. App'x 204 (5th Cir. 2015).unpublished
- United States v. Adan Amador-Cuenca, 610 F. App'x 403 (5th Cir. 2015).unpublished
- United States v. David Chavez-Delgado, 694 F. App'x 271 (5th Cir. 2017).unpublished
- United States v. Christopher Wilson, 694 F. App'x 352 (5th Cir. 2017).unpublished
- United States v. Joel Arana-Rivera, 698 F. App'x 796 (5th Cir. 2017).unpublished
- United States v. Brandon Bradley-Murry, No. 18-60615 (5th Cir. Mar. 20, 2019).unpublished
- United States v. Carlos Hernandez-Sanchez, No. 19-20054 (5th Cir. Oct. 8, 2019).unpublished
At page 530 Reviewing substantive reasonableness of non-guidelines sentence37 citing cases“in reviewing a challenge to the length of a non-guidelines sentence, we may 'take the degree of variance into account and consider the extent of a deviation from the guidelines.”
- United States v. Delton Jones, No. 19-50640 (5th Cir. Mar. 31, 2020).unpublishedCf. United States v. Herrera-Garduno, 519 F.3d 526, 530-31 (5th Cir. 2008). 2 Inasmuch as Jones complains that the extent of the variance was unjustified, his argument is unavailing.
- United States v. Avan Nguyen, 854 F.3d 276 (5th Cir. 2017).publishedIn reviewing a challenge to the length of a non-Guidelines sentence, this court “may take the degree of variance into account and consider the extent of a deviation from the Guidelines.” United States v. Herrera-Garduno, 519 F.3d 526, 530…
- United States v. Jesus Rosales-Bruno, 789 F.3d 1249 (11th Cir. 2015).published (rejecting defendant’s argument that the district court’s possible disagreement with how “drug trafficking offenses” were defined under U.S.S.G. § 2L1.2 was an insufficient reason to impose a non-guidelines sentence)
- United States v. Jaime Ibarra-Luna, 471 F. App'x 418 (5th Cir. 2012).unpublishedSee United States v. Brantley, 537 F.3d 347, 348-50 (5th Cir.2008); United States v. Herrera-Garduno, 519 F.3d 526, 530-32 (5th Cir.2008); Smith, 440 F.3d at 705-06, 709-10 .
- United States v. Rogelio Hernandez-Portillo, 442 F. App'x 146 (5th Cir. 2011).unpublishedWe have also held that a district court may impose a non-guidelines sentence based upon its disagreement with the Guidelines, United States v. Herrerar-Garduno, 519 F.3d 526, 530-31 (5th Cir.2008), and rejected arguments that double counti…
- United States v. Brion Randall, 440 F. App'x 283 (5th Cir. 2011).unpublished Gall v. United States, 552 U.S. 38, 46 , 128 S.Ct. 586 , 169 L.Ed.2d 445 (2007); United States v. Herrera-Garduno, 519 F.3d 526, 529 (5th Cir.2008).
- United States v. Jesus Payan-Gloria, 438 F. App'x 295 (5th Cir. 2011).unpublished He contends that immigration offenses generally result in relatively high guidelines ranges for relatively minor conduct; his guidelines imprisonment range was high relative to the seriousness of his offenses; and his guidelines range did…
- United States v. Juan Villarreal-Pena, 434 F. App'x 362 (5th Cir. 2011).unpublishedSee, e.g., United States v. Brantley, 537 F.3d 347, 348-50 (5th Cir.2008); United States v. Herrera-Garduno, 519 F.3d 526, 530-32 (5th Cir. 2008).
- United States v. Wendy Chriss, No. 10-30101 (5th Cir. July 13, 2011).publishedAlthough a 60-month sentence is a substantial deviation from the Guidelines range of 33 to 41 months, it is “commensurate with the individualized, case-specific reasons provided by the 7 No. 10-30099 district court.” United States v. Herre…
- United States v. McElwee, 646 F.3d 328 (5th Cir. 2011).publishedAlthough a 60-month sentence is a substantial deviation from the Guidelines range of 33 to 41 months, it is “commensurate with the individualized, case-specific reasons provided by the district court.” United States v. Herrera-Garduño, 519…
Show 24 more citing cases
- United States v. Giovennie Barahona, 412 F. App'x 717 (5th Cir. 2011).unpublished See United States v. Brantley, 537 F.3d 347, 348-50 (5th Cir.2008); United States v. Herrera-Garduno, 519 F.3d 526, 530-32 (5th Cir.2008); United States v. Smith, 440 F.3d 704, 708-10 (5th Cir.2006); United States v. Simkanin, 420 F.3d 397…
- United States v. Jerry Allen, Jr., 398 F. App'x 93 (5th Cir. 2010).unpublishedSee id. at 348-50 ; United States v. Herrera-Garduno, 519 F.3d 526, 530-32 (5th Cir.2008).
- United States v. Jason Segura, 435 F. App'x 296 (5th Cir. 2010).unpublishedSee Brantley, 537 F.3d at 348-50 (upward variance resulted in sentence 253% above top of Guidelines range); United States v. Herrera-Garduno, 519 F.3d 526, 530-32 (5th Cir.2008); United States v. Smith, 440 F.3d 704, 708-10 (5th Cir.2006).
- United States v. Trent Thomas, 370 F. App'x 504 (5th Cir. 2010).unpublished(affirming variance from the guideline maximum of 27 months to a sentence of 60 months)
- United States v. John Rubio, 365 F. App'x 595 (5th Cir. 2010).unpublishedSee United States v. Brantley, 537 F.3d 347, 348-50 (2008); United States v. Herrera-Garduno, 519 F.3d 526, 530-32 (5th Cir. 2008).
- United States v. Martinez, 354 F. App'x 23 (5th Cir. 2009).unpublishedSee United States v. Brantley, 537 F.3d 347, 348-50 (5th Cir.2008); United States v. Herrera-Garduno, 519 F.3d 526, 530-32 (5th Cir.2008); United States v. Smith, 440 F.3d 704, 708-10 (5th Cir.2006).
- United States v. Ponce-Ponce, 352 F. App'x 939 (5th Cir. 2009).unpublishedSee Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597 , 169 L.Ed.2d 445 (2007); United States v. Herrera-Garduno, 519 F.3d 526, 530 (5th Cir.2008).
- United States v. Booker, 344 F. App'x 978 (5th Cir. 2009).unpublished(variance from guidelines maximum of 27 months to a sentence of 60 months)
- United States v. Smith, 306 F. App'x 185 (5th Cir. 2009).unpublished
- United States v. Morin, 306 F. App'x 146 (5th Cir. 2009).unpublished
- United States v. Payton, 325 F. App'x 385 (5th Cir. 2009).unpublished
- United States v. Myers, 330 F. App'x 477 (5th Cir. 2009).unpublished
- United States v. Rodriguez-Orozco, 332 F. App'x 968 (5th Cir. 2009).unpublished
- United States v. Lopez-Portillo De Cruz, 340 F. App'x 979 (5th Cir. 2009).unpublished
- United States v. Adame-Roman, 344 F. App'x 890 (5th Cir. 2009).unpublished
- United States v. Cerda, 342 F. App'x 988 (5th Cir. 2009).unpublished
- United States v. Nenigar, 354 F. App'x 56 (5th Cir. 2009).unpublished
- United States v. Lente, 323 F. App'x 698 (10th Cir. 2009).unpublished
- United States v. Jose Solis-Castillo, 398 F. App'x 988 (5th Cir. 2010).unpublished
- United States v. Fontaine Gremillion, 418 F. App'x 273 (5th Cir. 2011).unpublished
- United States v. Marcus Jacobs, 635 F.3d 778 (5th Cir. 2011).published
- United States v. Anthony Thomas, 447 F. App'x 568 (5th Cir. 2011).unpublished
- United States v. Herrera-Zuniga, 571 F.3d 568 (6th Cir. 2009).published
- United States v. Guadalupe De Los Santos, 668 F. App'x 98 (5th Cir. 2016).unpublished
At page 529 Reviewing sentence reasonableness and procedural error12 citing cases“first ensures that the district court committed no significant procedural error' and 'then considers the substantive reasonableness of the sentence imposed.”
- United States v. Brion Randall, 440 F. App'x 283 (5th Cir. 2011).unpublished Gall v. United States, 552 U.S. 38, 46 , 128 S.Ct. 586 , 169 L.Ed.2d 445 (2007); United States v. Herrera-Garduno, 519 F.3d 526, 529 (5th Cir.2008).
- United States v. Leonel Gonzalez-Mendoza, 401 F. App'x 995 (5th Cir. 2010).unpublishedUnited States v. Herrera-Garduno, 519 F.3d 526, 529 (5th Cir.2008).
- United States v. Sergio Dominguez-Rodriguez, 400 F. App'x 881 (5th Cir. 2010).unpublishedThis court “ ‘first ensure[s] that the district court committed no significant procedural error’ and ‘then consider[s] the substantive reasonableness of the sentence imposed.’ ” United States v. Herrera-Garduno, 519 F.3d 526, 529 (5th Cir.…
- United States v. Manuel Mendoza, 397 F. App'x 941 (5th Cir. 2010).unpublishedUnited States v. Herrera-Garduno, 519 F.3d 526, 529 (5th Cir.2008).
- United States v. Carl Hall, 381 F. App'x 390 (5th Cir. 2010).unpublishedWe first examine whether the district court committed any “significant procedural error.” United States v. Herrera-Garduno, 519 F.3d 526, 529 (5th Cir. 2008) (quoting Gall, 552 U.S. at 51 , 128 S.Ct. 586 ).
- United States v. Romero-Alvarez, 293 F. App'x 343 (5th Cir. 2008).unpublished
- United States v. Guerra, 320 F. App'x 236 (5th Cir. 2009).unpublished
- United States v. Soto-Martinez, 325 F. App'x 330 (5th Cir. 2009).unpublished
- United States v. Gonzalez, 339 F. App'x 400 (5th Cir. 2009).unpublished
- United States v. Hernandez-Tarango, 335 F. App'x 474 (5th Cir. 2009).unpublished
Show 2 more citing cases
- United States v. Foots, 340 F. App'x 969 (5th Cir. 2009).unpublished
- United States v. Raul Segovia, 384 F. App'x 343 (5th Cir. 2010).unpublished
At page 532 Upholding sentences deviating from advisory guidelines4 citing casescompiling cases upholding sentences that "deviated” upwardly from the advisory guidelines, a somewhat different but still analogous situation to Butler's
- United States v. Morris Butler, Jr., 358 F. App'x 592 (5th Cir. 2010).unpublished(compiling cases upholding sentences that "deviated” upwardly from the advisory guidelines, a somewhat different but still analogous situation to Butler's)
- United States v. Aguillar-Guerrero, 344 F. App'x 969 (5th Cir. 2009).unpublished(upholding a sentence of sixty months where the Guidelines range was twenty-one to twenty-seven months)
- United States v. Rodrigo Padilla-Cortez, 499 F. App'x 391 (5th Cir. 2012).unpublished
- United States v. Efrain Frias-Almanza, 540 F. App'x 268 (5th Cir. 2013).unpublished
v.
Rene HERRERA-GARDUNO, Defendant-Appellant
Rene Herrera-Garduño (Herrera) argues his non-Guidelines sentence is an unreasonable upward departure from the advisory Guidelines range. We conclude that the sentence is not unreasonable and AFFIRM.
I.
Herrera pled guilty to illegal reentry after deportation in violation of 8 U.S.C. § 1326(a) and (b). In the Presentence Report (PSR), which applied the 2006 edition of the Guidelines Manual, the probation officer scored Herrera at a base offense level of 8. He then increased the offense level by 16 points pursuant to U.S.S.G. § 2L1.2(b)(l)(A)(i), which authorizes a 16-point enhancement if the defendant has been convicted of a prior “drug trafficking offense” for which the sentence imposed exceeded 13 months. [1] The PSR stated that the basis for this enhancement was Herrera’s prior convictions under Texas Health & Safety Code § 481.112(a). [2] After a three-level reduction for acceptance of responsibility, the PSR assigned a total offense level of 21. With a criminal history category of V, Herrera’s recommended Guidelines sentencing range was 70 to 87 months of imprisonment.
Herrera objected to the PSR’s classification of his prior convictions as drug traf[*529] ficking offenses. He argued that the PSR’s classification was improper as Texas Health & Safety Code § 481.112(a) encompasses activity that does not fall within § 2L1.2’s definition of “drug trafficking offense.” The district court sustained Herrera’s objection to the application of the 16-point enhancement. [3] Herrera’s revised Guidelines sentencing range was 21 to 27 months of imprisonment.
In response to this change in Herrera’s Guidelines sentencing range, the government requested an upward departure from the Guidelines sentencing range. The government argued that a sentence within the Guidelines sentencing range would not satisfy the ends of 18 U.S.C. § 3553, which lists the factors to be considered in imposing a sentence. [4] The district court agreed and sentenced Herrera to 60 months of imprisonment. Herrera objected to the upward departure at sentencing, but the district court overruled his objection. He now appeals.
II.
Herrera argues that the sentence is unreasonable because, first, the district court imposed the non-Guidelines sentence primarily because it disagreed with how “drug trafficking offenses” are defined under § 2L1.2, and that such a “disagreement” is not a sufficient reason to impose a non-Guidelines sentence. He further argues that the other reasons given by the district court are “generalized observations” insufficient to justify the extent of the upward departure. And, finally, he argues that even if his prior convictions warranted an upward departure from the Guidelines range, the facts of his case are not so compelling as to justify the sentence imposed.
III.
We review whether a sentence is reasonable under an abuse-of-discretion standard. Gall v. United States, - — U.S. -, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). In performing this review, we “first ensure that the district court committed no significant procedural error” and “then consider the substantive reasonableness of the sentence imposed .... ” Id.
[*530] A.
As an initial matter, we note that the district court committed no significant procedural error. The district court correctly calculated the Guidelines range, treated the Guidelines as advisory, considered the § 3553(a) factors, allowed both parties to present arguments as to what they believed the appropriate sentence should be, did not base Herrera’s sentence on clearly erroneous facts, and thoroughly documented its reasoning. See id. at 597-98 (providing procedural considerations).
B.
We now turn to review the substantive reasonableness of the sentence imposed. In reviewing a challenge to the length of a non-Guidelines sentence, we may “take the degree of variance into account and consider the extent of a deviation from the Guidelines.” Id. at 595. But in applying abuse-of-discretion review, we “must give due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance.” Id. at 597. Moreover, “[t]he fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court.” Id.
After considering the Guidelines range (21 to 27 months), the district court considered the other § 3553(a) factors. The district court noted, inter alia, that an upward departure was warranted as Herrera’s “prior crimes were not used to properly enhance his offense level.” The district court agreed that the PSR’s classification of Herrera’s prior convictions was improper as Texas Health & Safety Code § 481.112(a) encompasses activity that does not fall within § 2L1.2’s definition of “drug trafficking offense.” But the district court, based on the presented and uncontroverted facts, concluded that an upward departure was warranted as the Guidelines sentencing range did not reflect the seriousness of Herrera’s prior convictions. [5] Referencing Herrera’s prior convictions, the district court specifically noted that Herrera had in his possession over 400 grams of heroin and $2,500 in cash, which according to the district court indicated that Herrera was in fact trafficking heroin.
Herrera argues that the district court imposed the non-Guidelines sentence primarily because it disagreed with how “drug trafficking offenses” are defined under § 2L1.2. He further argues that such a “disagreement” is not a sufficient reason to impose a non-Guidelines sentence.
We note, first, that Herrera’s argument that a disagreement with the Guidelines is not a sufficient reason to impose a non-Guidelines sentence has lost most of its force in the light of recent Supreme Court pronouncements. In Kimbrough v. United States, the Court noted that “as a general matter, ‘courts may vary [from Guidelines ranges] based solely on policy considerations, including disagreements with the Guidelines.’ ” — U.S. -, 128 S.Ct. 558, 570, 169 L.Ed.2d 481 (2007) (alteration in original) (citing Rita v. United States, — U.S. -, 127 S.Ct. 2456, 2465, 168 L.Ed.2d 203 (2007), for the proposition that a district court may consider arguments that “the Guidelines sentence[*531] itself fails properly to reflect § 3553(a) considerations”).
Second, we have previously held that “[a] defendant’s criminal history is one of the factors that a court may consider in imposing a non-Guideline[s] sentence.” United States v. Smith, 440 F.3d 704, 709 (5th Cir.2006). See U.S.S.G. § 1B1.4 (noting that “[i]n determining ... whether a departure from the guidelines is warranted, the court may consider, without limitation, any information concerning the background, character and conduct of the defendant, unless otherwise prohibited by law”). And we have also upheld an upward departure without regard to whether the prior offense “technically” qualified as a crime of violence under § 2L1.2(b)(l)(A)(ii). United States v. Tzep-Mejia, 461 F.3d 522, 526-28 (5th Cir.2006). Moreover, in a recent case, United States v. Lopez-Salas, we noted that, even though the defendant’s prior conviction was not a “drug trafficking offense” under § 2L1.2(b)(l)(A)(i), if, on remand, the district court chose to impose a non-Guidelines sentence, the district court could consider the defendant’s prior conviction for this purpose. 513 F.3d 174, 180-81 (5th Cir.2008). In the light of these precedents, it is clear that the district court did not abuse its discretion by considering the facts of Herrera’s prior convictions as a basis for his non-Guidelines sentence.
Herrera also argues that the other reasons given by the district court for the non-Guidelines sentence are “generalized observations” insufficient to justify the extent of the upward departure. Because we have rejected Herrera’s argument regarding the district court’s “disagreement” with how “drug trafficking offenses” are defined under § 2L1.2, this argument regarding the district court’s “generalized observations” lacks weight. Even if we concluded that the other reasons given by the district court are too general to justify the extent of the upward departure, we would still hold, for reasons indicated below, that the district court did not abuse its discretion by upwardly departing from the Guidelines range.
Moreover, we should note that a district court need not recite each of the § 3553(a) factors and explain its applicability. See Smith, 440 F.3d at 707. Here, because the district court relied primarily on the facts of Herrera’s prior conviction, and because the court addressed these facts and their relation to the § 3553(a) factors in some detail, we are satisfied that the district court’s statement of reasons provides an adequate basis for our review. See Gall, 128 S.Ct. at 597 (noting that a district court “must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing”).
We now turn to address Herrera’s argument that even if his prior convictions warranted an upward departure from the Guidelines range, the facts of his case are not so compelling as to justify the sentence imposed.
As said above, the district court sentenced Herrera to 60 months of imprisonment, even though the Guidelines sentencing range was 21 to 27 months of imprisonment. This upward departure is substantial, but the departure is commensurate with the individualized, case-specific reasons provided by the district court. The district court concluded that the Guidelines range did not adequately account for the fact that Herrera had in fact been convicted for drug trafficking conduct. Had the sentencing enhancement under § 2L1.2 for drug trafficking offenses been applied, the Guidelines sentencing range would have been 70 to 87 months of imprisonment. Using this range as a reference, Herrera’s sentence of 60 months of imprisonment is not unreasonable and the[*532] district court did not abuse its discretion by imposing this sentence.
To be sure, this court has upheld sentences reflecting similar and proportionately larger deviations from the advisory Guidelines. See Smith, 440 F.3d 704, 705-06 (5th Cir.2006) (upholding sentence of 60 months where maximum sentence under Guidelines range was 27 months); United States v. Jones, 444 F.3d 430, 433 (5th Cir.2006) (upholding sentence of 120 months where maximum sentence under Guidelines range was 57 months); United States v. Smith, 417 F.3d 483, 492 (5th Cir.2005) (upholding sentence of 120 months where maximum sentence under Guidelines range was 41 months); United States v. Daughenbaugh, 49 F.3d 171, 174-75 (5th Cir.1995) (upholding sentence of 240 months where maximum sentence under Guidelines range was 71 months); United States v. Rosogie, 21 F.3d 632, 633-34 (5th Cir.1994) (upholding sentence of 150 months where maximum under Guidelines range was 37 months).
And, finally, the factors considered by the district court in setting Herrera’s sentence are all relevant, proper factors: the nature and circumstances of the offense and the history and characteristics of the defendant, the need to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense, and to afford adequate deterrence to criminal conduct. We see no other factors that required significant weight and find.no errors of judgment in the district court’s balancing of the sentencing factors. [6]
We therefore conclude that Herrera’s sentence is not unreasonable and that the district court did not abuse its discretion in sentencing Herrera to 60 months of imprisonment.
IV.
For the foregoing reasons, we AFFIRM.
. " 'Drug trafficking offense' means an offense under federal, state, or local law that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.” U.S.S.G. § 2L1.2 cmt. n.l(B)(iv).
. Section 481.112(a) provides that "a person commits an offense if the person knowingly manufactures, delivers, or possesses with intent to deliver a controlled substance ....”
. We recently noted that a conviction for "possession with intent to deliver” under § 481.112(a) qualifies as a “controlled substance offense” that can serve as a basis for a sentence enhancement pursuant to U.S.S.G. § 2K2.1(a)(4)(A). United States v. Ford, 509 F.3d 714, 715 (5th Cir.2007). "Controlled substance offense” is defined by U.S.S.G. § 4B 1.2(b). U.S.S.G. § 2K2.1 cmt. n.l. The definition of "controlled substance offense” provided by § 4B 1.2(b) is "almost identical” to the definition of "drug trafficking offense” provided by U.S.S.G. § 2L1.2 cmt. n.l(B)(iv). Ford, 509 F.3d at 717 n. 2. A prior conviction for "possession with intent to deliver” under § 481.112(a) therefore would be an appropriate basis for a 16-point enhancement pursuant to § 2L1.2(b)(l)(A)(i).
. Section 3553(a) lists seven factors that a sentencing court must consider. The first factor is “the nature and circumstances of the offense and the history and characteristics of the defendant.” 18 U.S.C. § 3553(a)(1). The second factor is “the need for the sentence ... (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.” § 3553(a)(2).
The third factor is "the kinds of sentences available,” § 3553(a)(3); the fourth is the Guidelines; the fifth is "any relevant policy statement” issued by the Sentencing Commission; the sixth is "the need to avoid unwarranted sentence disparities,” § 3553(a)(6); and the seventh is "the need to provide restitution to any victim,” § 3553(a)(7).
. In the written statement of reasons for the sentence imposed, the district court noted that it had imposed the non-Guidelines sentence for the following reasons: (1) the nature and circumstances of the offense and the history and characteristics of the defendant, pursuant to § 3553(a)(1); (2) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense, pursuant to § 3553(a)(2)(A); and (3) to afford adequate deterrence to criminal conduct, pursuant to § 3553(a)(2)(B).
. Herrera argues that his sentence is unreasonable because the district court failed appropriately to consider the sentencing disparity created by the sentence imposed. But this argument is without merit. See Gall, 128 S.Ct. at 599 ("Since the District Judge correctly calculated and carefully reviewed the Guidelines range, he necessarily gave significant weight and consideration to the need to avoid unwarranted disparities.”).