PER CURIAM: Leobardo Bailon-Renteria (Bailó
n) pleaded guilty to being illegally present in the United States following removal and was sentenced to a 48-month term of imprisonment to be followed by a three-year term of supervised release. The district court indicated that the 48-month sentence of imprisonment was a variance from the guidelines range of 18-24 months of imprisonment and that, in the alternative, the sentence was a departure pursuant to U.S.S.G. § 4A1.3(a). Attacking the sentence as a departure, Bailón contends that the district court erred by failing to make findings required under § 5K2.0(a)(3).
It is unnecessary to consider whether the district court erred in imposing a departure because, as discussed below, the sentence may be affirmed as an upward variance. See United States v. Bonilla, 524 F.3d 647, 656-59 (5th Cir.2008); United States v. Mejia-Huerta, 480 F.3d 713, 723 & n. 43 (5th Cir.2007). Bailón asserts that the district court abused its discretion by both (1) finding that a sentence in excess of 24 months would be greater than necessary to achieve the statutory purposes of sentencing and (2) imposing a 48-month sentence.
He contends that, by operation of statute, spe-eifieally 28 U.S.C. § 994(b), the establishment of a guidelines range entails a determination that a sentence above that range is greater than necessary to achieve the goals of sentencing set forth in 18 U.S.C. § 8553(a). Relying on Koon v.
United States, 518 U.S. 81, 100, 116 S.Ct. 2085, 135 L.Ed.2d 392 (1996), Bailon argues that the district court reached an erroneous legal conclusion when it determined that a 24-month sentence was greater than necessary and yet, by imposing a 48-month sentence, also determined that a sentence greater than 24 months was not greater than necessary. Following United States v.
Booker, 543 U.S. 220, 245, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), which rendered the guidelines range “effectively advisory,” this court identified three types of sentences that a district court could impose: (1) a sentence within the guidelines range; (2) a “departure” based on the Guidelines, and (3) a non-guidelines sentence or “variance” outside the guidelines range and based on § 3553(
a) factors. United States v. Brantley, 537 F.3d 347, 349 (5th Cir.2008). As we noted above, the district court characterized Bailon’s sentence as an upward variance or, in the alternative, an upward departure. As a variance, the sentence imposed by the district court was authorized under this court’s jurisprudence and does not represent an abuse of discretion merely because it was above the advisory guideline range. See id.
Further, although the district court adopted the presentence report (PSR), in doing so it did not indicate that it was making a determination that a sentence of no more than 24 months — the top of the guidelines range — would be sufficient to satisfy the sentencing objectives of § 3553(a). Indeed, the district court stated at sentencing that it was adopting the conclusions set forth in the PSR as modified or supplemented by any conclusions expressed from the bench.
The district court went on at sentencing to express its determination that a sentence of 48 months of imprisonment was necessary to address the sentencing considerations of § 3553(a), and it explained at length its decision to upwardly vary from the guidelines range with references to Bailon’s extensive criminal history and his multiple illegal reentries into the United States after removal. Bailón fails to establish that the district court reached an erroneous legal conclusion or that there was reversible error in the imposition of a non-Guidelines sentence.
Accordingly, the judgment of the district court is AFFIRMED. 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.