IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-20267 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PEDRO ZAMARRON-CERVANTES,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. H-97-CR-272-1 - - - - - - - - - -

December 23, 1998

Before JOLLY, SMITH, and WIENER, Circuit Judges.

PER CURIAM:*

Pedro Zamarron-Cervantes appeals his sentence imposed by the

district court for being present in the United States, without

permission, following deportation. He argues that the district

court did not provide notice of the specific grounds that it intended

to use for an upward departure and that the district court improperly

departed upward from the Sentencing Guidelines.

A district court may depart upward from the guidelines if

the court finds that an aggravating circumstance exists that was

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 98-20267 -2-

not adequately taken into consideration by the Sentencing

Commission in formulating the guidelines.

(b).

The district court must state “the specific reason for the

imposition of a sentence” outside the guideline range.

(c)(2). A district court’s decision to depart from the

guidelines is reviewed for an abuse of discretion. United States

v. Ashburn,

(5th Cir. 1994)(en banc). A

departure from the guidelines will be affirmed on appeal if

(1) the district court gives acceptable reasons for departing,

and (2) the extent of the departure is reasonable.

A sentencing court must provide the parties an opportunity

to comment upon matters relating to the appropriate sentence.

Fed. R. Crim. P. 32(c)(1). Rule 32, Fed. R. Crim. P., requires

that the district court give the parties reasonable notice that

it is contemplating making an upward departure. Burns v. United

States,

(1991). “This notice must specifically

identify the ground on which the district court is contemplating

an upward departure.”

We have reviewed the record and the briefs of the parties

and conclude that the district court did not abuse its discretion

in departing upward from the Sentencing Guidelines. The district

court provided adequate reasons for its incremental upward

departures. The district court demonstrated proper reliance on

the guideline levels and consideration of the number and type of

crimes committed. The departure was not unreasonably excessive in

light of the defendant’s extensive criminal history. A review of

the record indicates that the Presentence Report addressed the No. 98-20267 -3-

possibility of an upward departure and the grounds therefor and

provided Zamarron-Cervantes with adequate notice.

The judgment of the district court is AFFIRMED.