United States v. Limbano Galindo-Lara ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS FILED
U.S. COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ELEVENTH CIRCUIT
MAY 19, 2008
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THOMAS K. KAHN
CLERK
No. 07-15363
Non-Argument Calendar
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D. C. Docket No. 07-00171-CR-01-JEC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LIMBANO GALINDO-LARA,
a.k.a. Jorge Fernandez Mendez,
a.k.a. Limbrano Galindo,
a.k.a. Jorge Garcia-Mendez,
a.k.a. Jorge Galindo-Mendez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
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(May 19, 2008)
Before TJOFLAT, DUBINA and PRYOR, Circuit Judges.
PER CURIAM:
Limbano Galindo-Lara pled guilty to being an alien who illegally re-entered
the United States after being removed, in violation of 8 U.S.C. § 1326(a) and
(b)(2), and the district court sentenced him to prison for a term of 37 months. He
now appeals his sentence, claiming that the court (1) erred by not eliciting
objections when it issued an amended judgment which changed his sentence;
(2) abused its discretion by not following the proper procedure when upwardly
departing from the Guidelines sentence range under U.S.S.G. § 4A1.3; and
(3) erred by imposing an unreasonable sentence. We address the first two claims;
in light of our disposition of this appeal, it is unnecessary to consider the third
claim.
(1) Following the imposition of a sentence, the district court must elicit fully
articulated objections to the court’s findings of fact and conclusions of law. United
States v. Jones, 899 F.2d 1097, 1102 (11th Cir. 1990), overruled on other grounds,
United States v. Morrill, 984 F.2d 1136 (11th Cir. 1993) (en banc). If the court
fails to do this, which is the case here, “[a] remand is unnecessary . . . [if] the
record on appeal is sufficient to enable review.” United States v. Campbell, 473
F.3d 1345, 1347 (11th Cir. 2007). The record in this case on appeal is sufficient to
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enable meaningful review. See Campbell, 473 F.3d at 1347.
(2) Galindo claims that the district court failed to follow the proper
procedure for imposing a departure, under U.S.S.G. § 4A1.3, in that it neglected to
conduct the required incremental inquiry by explicitly considering each higher
criminal history category and determining whether that category yielded an
appropriate sentence range. We generally review a district court’s upward
departure under § 4A1.3 for an abuse of discretion. United States v. Hernandez,
160 F.3d 661, 668 (11th Cir. 1998). A district court abuses its discretion if it
follows improper procedures in making a determination. Klay v. United
Healthgroup, Inc., 376 F.3d 1092, 1096 (11th Cir. 2004). “Typically, when a
defendant fails to object to an alleged error before the district court, we review the
argument only for plain error.” United States v. Johnson, 451 F.3d 1239, 1242
(11th Cir.), cert. denied, 127 S. Ct. 462 (2006). To preserve an objection, the
defendant must “clearly articulate a specific objection during sentencing.” United
States v. Zinn, 321 F.3d 1084, 1088 (11th Cir. 2003). However, where the court
fails to give the defendant an opportunity to raise an objection by not eliciting
objections following the imposition of the sentence, we have declined to review an
unpreserved issue only for plain error. See Johnson, 451 F.3d at 1242.
Under U.S.S.G. § 4A1.3, an upward departure may be warranted if “reliable
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information indicates that the defendant’s criminal history category substantially
under-represents the seriousness of the defendant’s criminal history or the
likelihood that the defendant will commit other crimes.” The Guidelines
distinguish between guided and unguided departures. United States v. Gibson, 434
F.3d 1234, 1252 (11th Cir. 2006). Under § 4A1.3, the district court must make a
guided horizontal departure. Id. “When granting a departure under [§ 4A1.3], the
district court must discuss each criminal history category it passes over en route to
the category that adequately reflects the defendant’s past criminal conduct.” Id. at
1252-53 (quotation omitted); see United States v. Johnson, 934 F.2d 1237, 1239-
40 (11th Cir. 1991). Failure to follow this procedure is reversible error and
requires resentencing. See United States v. Huang, 977 F.2d 540, 543-44 (11th
Cir. 1992).
Although Galindo may have not clearly articulated a specific objection to the
procedure the district court used in imposing the § 4A1.3 departure, we review this
issue for an abuse of discretion because he did not have an opportunity to object
following the imposition of sentence. See Johnson, 451 F.3d at 1242; Zinn, 321
F.3d at 1088. Here, the court neglected to follow the proper procedure for making
a guided departure under § 4A1.3 because it failed to “discuss each criminal
history category it passe[d] over en route to the category that adequately reflect[ed]
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the defendant’s past criminal conduct.” Gibson, 434 F.3d at 1252-53; see Klay,
376 F.3d at 1096. We therefore vacate Galindo’s sentence and remand the case for
resentencing.
VACATED and REMANDED.
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