IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           August 17, 2009
                                     No. 08-40852
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk




UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

versus

SUSANA LOPEZ-PORTILLO DE CRUZ,

                                                   Defendant-Appellant.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                                 No. 5:08-CR-42-2




Before SMITH, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*


       Susana Lopez-Portillo de Cruz appeals the 50-month sentence imposed
after she pleaded guilty of conspiring with her husband and others to transport

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-40852

and harbor illegal aliens for financial gain in violation of 8 U.S.C. § 1324(a)(1)(A)
and (B). She argues that the district court erred by sentencing her above the ap-
plicable guideline range of 33-41 months.
      Under United States v. Booker, 

(2005), sentences are re-
viewed for reasonableness in light of the sentencing factors in 18 U.S.C.
§ 3553(a). United States v. Mares, 

, 519-20 (5th Cir. 2005). If, as
in this case, a defendant does not challenge the procedural correctness of the
sentence, this court may proceed to an examination of the substantive reasona-
bleness of the sentence, see United States v. Brantley, 

, 349 (5th Cir.
2008), under an abuse-of-discretion standard, see Gall v. United States, 128 S.
Ct. 586, 596-97 (2007). Lopez-Portillo de Cruz seems to concede that, because
she did not object to the reasonableness of her sentence in the district court, re-
view should be for plain error only. See United States v. Peltier, 

,
390-92 (5th Cir. 2007), cert. denied, 

(2008). Under either stan-
dard of review, Lopez-Portillo de Cruz is not entitled to relief. See United States
v. Rodriguez, 

, 525 (5th Cir.), cert. denied, 

(2008).
      The district court imposed a non-guideline sentence above the guideline
range. The selection of a non-guideline sentence is within that court’s discretion.

. This court “must give due deference to the district
court’s decision that the § 3553(a) factors, on a whole, justify the extent of the
variance.” 

sentence unreasonably fails to reflect the statu-
tory sentencing factors where it (1) does not account for a factor that should have
received significant weight, (2) gives significant weight to an irrelevant or im-
proper factor, or (3) represents a clear error of judgment in balancing the sen-
tencing factors.” United States v. Smith, 

, 708 (5th Cir. 2006).
      The district court determined that the sentence imposed was reasonable
based on the length and scope of the alien smuggling conspiracy and the fact
that Lopez-Portillo de Cruz had abused her husband’s position as a border patrol
agent to further the objectives of the conspiracy. These are proper sentencing

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                                No. 08-40852

considerations. See § 3553(a)(1), (2). Further, the upward variance from the
guideline maximum of 41 months to a sentence of 50 months is not unreason-
able. This court has upheld considerably greater variences. See 

(variance from the guideline maximum of 51 months to a sen-
tence of 180 months); United States v. Herrera-Garduno, 

, 530-32
(5th Cir. 2008) (variance from the guideline maximum of 27 months to a sen-
tence of 60 months); 

(same).
     Lopez-Portillo de Cruz has not shown that the court imposed an unreason-
able sentence. See 

. The judgment is AFFIRMED.




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