United States v. Alfredo Guerrero , 633 F. App'x 241 ( 2016 )

Case: 15-40448 Document: 00513371016 Page: 1 Date Filed: 02/05/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-40448
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
February 5, 2016
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
ALFREDO GUERRERO,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:14-CR-1636-1
Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM: *
Alfredo Guerrero appeals his 30-month sentence for knowingly
transporting an illegal alien for the purpose of financial gain. The sentence
constituted a nine-month increase from the applicable guidelines range of 15-
21 months, which the district court stated was an upward departure pursuant
to two sections of the Sentencing Guidelines. The district court’s statements
at sentencing reflected concern that Guerrero had a prior conviction for the
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 15-40448 Document: 00513371016 Page: 2 Date Filed: 02/05/2016
No. 15-40448
same offense for which he had received a 20-month sentence, only one month
below the top of the current guidelines range.
On appeal, Guerrero asserts that the district court abused its discretion
by imposing the upward departure. He contends that the departure may not
be justified under § 5K2.0, which covers aggravating or mitigating
circumstances, because the commentary to this policy statement states that
departures based on criminal history should be considered under § 4A1.3. But,
he maintains, the court could not rely on § 4A1.3 to support the departure
because nothing in that section’s policy statement authorizes an upward
departure based on the similarity of the instant offense to the conduct
underlying a prior conviction. The Government asserts that we should review
Guerrero’s claims for plain error because he did not raise these grounds in the
district court.
We need not resolve the proper standard of review, as Guerrero’s claims
fail even under the more onerous abuse-of-discretion standard. See United
States v. Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir. 2006). This court has
upheld an upward departure based on the similarity between the defendant’s
prior and current convictions under each of the policy statements relied upon
by the district court. See United States v. Schmeltzer, 20 F.3d 610, 613 (5th
Cir. 1994) (§ 5K2.0); United States v. De Luna-Trujillo, 868 F.2d 122, 124-25
(5th Cir. 1989) (§ 4A1.3). Consequently, the judgment of the district court is
AFFIRMED.
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