UNITED STATES of America, Appellee, v. Serafin LOPEZ-FLORES, also known as Antonio Lopez, Appellant, 143 F. App'x 734

PER CURIAM. Serafín Lopez-Flores appeals the sentence imposed by the district court upon him claiming error for overstating his criminal history. He also contends the district court impermissibly relied upon the Sentencing Guidelines and the ultimate sentence was higher than necessary to achieve the sentencing purposes of 18 U.S.C. § 3553(a) (West 2005).

Lopez-Flores agreed with the district court’s assessment of his criminal history category under the Guidelines, but asked for a downward departure from that category. (See Tr. at 5.) The district court was aware of its authority to depart from the Guidelines. (Id. at 7-9, 17.) There being no unconstitutional motive for the lack of departure alleged, the district court’s failure to depart is not reviewable. United States v. Gonzalez-Lopez, 335 F.3d 793, 799 (8th Cir.2003). Lopez-Flores argues the district court impermissibly relied upon the Sentencing Guidelines in violation of United States v.

Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). However, the district court made clear it recognized the advisory nature of the Sentencing Guidelines and considered the factors enumerated in 18 U.S.C. § 3553(a). (Tr. at 19.) Accordingly, the district court committed no Booker error. In light of the offense level, criminal history category, nature and circumstances of the offense, history of Lopez-Flores, and the other factors enumerated in § 3553(

a) and United States v. Adams, 401 F.3d 886, 895 (8th Cir.2005), this Court concludes the sentence imposed by the district court is in all aspects reasonable. We therefore affirm the district court. . The Honorable Richard G. Kopf, Chief Judge, United States District Court for the District of Nebraska.