United States v. Morin , 306 F. App'x 146 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 8, 2009
No. 08-20225
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
CEPRIANO MORIN
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:07-CR-516-1
Before SMITH, DEMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Cepriano Morin appeals his sentence following his guilty plea conviction
for escape in violation of 18 U.S.C. § 751(a). At sentencing, the district court
departed upward by two additional levels based on Morin’s criminal history and
recidivism; Morin was sentenced to 24 months of imprisonment. Morin argues
that the district court erred by departing upward and that the district court
failed to consider his mitigation evidence.
*
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should not be published and is not precedent except under the limited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. 08-20225
Following United States v. Booker, 543 U.S. 220 (2005), sentences are
reviewed for reasonableness in light of the sentencing factors in 18 U.S.C.
§ 3553(a). See United States v. Mares, 402 F.3d 511, 519-20 (5th Cir. 2005).
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)(2) and are
justified by the particular facts of the case. Id.
In the instant case, in light of Morin’s criminal history category of VI, the
number and nature of his prior offenses, and the frequency with which he
committed these offenses, the district court did not abuse its discretion in
imposing an upward departure. See id. at 347-48. Morin also argues that the
district court “ignored” his mitigation arguments regarding his marital and
health problems. These arguments were presented to the district court at the
sentencing hearing; the decision to impose an upward departure constitutes an
implicit rejection of these arguments. Cf. United States v. Herrera-Garduno, 519
F.3d 526, 530 (5th Cir. 2008); United States v. Smith, 440 F.3d 704, 707 (5th Cir.
2006).
This court must also resolve whether the extent of the departure was an
abuse of discretion. See United States v. Rajwani, 476 F.3d 243, 250 (5th Cir.),
modified on other grounds, 479 F.3d 904 (5th Cir. 2007). Given the extent and
nature of Morin’s criminal history and his history of recidivism, the district
court’s two-level upward departure and resulting sentence of 24 months, which
was three months above the prior guidelines maximum, was not an abuse of
discretion.
AFFIRMED.
2