Opinion
No. 10-20495 Summary Calendar.
June 1, 2011.
James Lee Turner, Assistant U.S. Attorney, U.S. Attorney's Office, Houston, TX, for Plaintiff-Appellee.
Marjorie A. Meyers, Federal Public Defender, Laura Fletcher Leavitt, Assistant Federal Public Defender, Molly Estelle Odom, Esq., Assistant Federal Public Defender, Federal Public Defender's Office, Houston, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of Texas, USDC No. 4:10-CR-96-1.
Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
J. Jesus Alvarez Lara (Alvarez) pleaded guilty to illegal reentry by a previously deported alien and was sentenced to 46 months of imprisonment and three years of supervised release. He now appeals his sentence, which was based on a upward departure under U.S.S.G. § 4A1.3, arguing that the facts did not warrant an upward departure and that the sentence was greater than necessary to achieve the goals of 18 U.S.C. § 3553(a).
We review Alvarez's sentence for reasonableness. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). Reasonableness review, in the context of a guidelines departure, requires this court to evaluate both the decision to depart upward and the extent of the departure for an abuse of discretion. United States v. Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir. 2006). An upward departure is not an abuse of discretion if the reasons for the departure advance the objectives of § 3553(a) and are justified by the particular facts of the case. Id.
Given Alvarez's extensive criminal record and the lack of deterrent effect from prior lenient sentences, the district court did not abuse its discretion by upwardly departing based upon its finding that Alvarez's criminal history under-represented the seriousness of his criminal history and the likelihood that he would recidivate. See § 3553(a); Zuniga-Peralta, 442 F.3d at 347; United States v. Brantley, 537 F.3d 347, 349-50 (5th Cir. 2008); United States v. Simkanin, 420 F.3d 397, 418 n. 24 (5th Cir. 2005); United States v. Pennington, 9 F.3d 1116, 1118 (5th Cir. 1993). Additionally, Alvarez has not shown that the district court erred in determining the extent of the departure. See Gall, 552 U.S. at 51, 128 S.Ct. 586, 128 S.Ct. 586; Zuniga-Peralta, 442 F.3d at 347-48. Following the direction of § 4A1.3(a)(4)(B), because Alvarez was already in the highest criminal history category, the district court moved incrementally down the Sentencing Table from a total offense level of ten to an offense level of 14; a total offense level of 14 with a criminal history category of VI yielded a new advisory sentencing guidelines range of 37 to 46 months of imprisonment. See U.S.S.G. Ch. 5, Pt. A, Sentencing Table. The district court determined that 46 months was the most appropriate and reasonable sentence for Alvarez. This 46-month sentence was 16 months greater than the high-end of the guidelines sentence range applicable without the upward departure. See U.S.S.G. Ch. 5, Pt. A, Sentencing Table. This court has affirmed similar and more substantial departures. See Zuniga-Peralta, 442 F.3d at 346-48; United States v. Lee, 358 F.3d 315, 328-29 (5th Cir. 2004); United States v. McKenzie, 991 F.2d 203, 205 n. 7, 206 n. 8 (5th Cir. 1993).
Accordingly, the district court's judgment is AFFIRMED.