United States v. Delossantos , 85 F. App'x 398 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS January 16, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-50833
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
FRED DELOSSANTOS
Defendant - Appellant
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-01-CR-240-1
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Before KING, Chief Judge, and DeMOSS and STEWART, Circuit Judges.
PER CURIAM:*
Fred Delossantos appeals the sentence imposed following
his guilty-plea conviction for bank fraud. He argues that
the district court abused its discretion by: (1) refusing to
grant him a reduction in his offense level for acceptance of
responsibility and (2) upwardly departing from the applicable
guideline range.
*
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that this opinion should not be published and is not precedent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. 02-50833
-2-
In light of the evidence in the record regarding
Delossantos’ post-plea criminal activity, the district court did
not abuse its discretion when it denied him points for acceptance
of responsibility. Delossantos’ post-plea conduct was entirely
inconsistent with the acceptance of responsibility and outweighed
any evidence supporting the reduction. See United States v.
Cano-Guel, 167 F.3d 900, 906 (5th Cir. 1999).
A district court may depart from a guideline sentencing
range when it finds that “there exists an aggravating or
mitigating circumstance of a kind, or to a degree, not adequately
taken into consideration by the Sentencing Commission in
formulating the guidelines that should result in a sentence
different from that described.” 18 U.S.C. § 3553(b). This court
reviews the district court’s decision to depart for abuse of
discretion. United States v. Hefferon, 314 F.3d 211, 227
(5th Cir. 2002). If the district court provides acceptable
reasons for the departure and the degree of the departure is
reasonable, there is no abuse of discretion. Hefferon, 314 F.3d
at 227.
In this case, the district court provided acceptable
reasons in support of his decision to upwardly depart, namely,
Delossantos’ post-plea criminal activity, which demonstrated
a high likelihood of recidivism. Additionally, although the
district court added approximately seven years and six months
to Delossantos’ three-year and ten-month guideline sentence, we
No. 02-50833
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are unable to conclude that the departure was unreasonable. See,
e.g., United States v. Lara, 975 F.2d 1120, 1126 (5th Cir. 1992)
(affirming sentence seven times greater than guideline maximum);
United States v. Roberson, 872 F.2d 597, 606 (5th Cir. 1989)
(three times); United States v. Juarez-Ortega, 866 F.2d 747(5th Cir. 1989) (more than four times). Moreover, Delossantos’
eleven-year and four-month sentence does not exceed the statutory
maximum of 30 years. See 18 U.S.C. § 1344. Accordingly, the
judgment is AFFIRMED.