United States v. Ruiz ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40202
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID GARCIA RUIZ,
also known as Davis Batis,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(C-99-CR-318-1)
September 29, 2000
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Davis Garcia Ruiz contests the upward-departure from the
Sentencing Guidelines imposed following his guilty-plea conviction
for unlawful possession of a firearm by a convicted felon. He
claims the district court abused its discretion by basing the
departure on old misdemeanor convictions, dismissed charges
unrelated to the instant offense of conviction, and a prior
conviction for unauthorized use of a vehicle. And, he asserts, for
*
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this opinion should not be published and is not precedent except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.
the first time on appeal, that the district court did not
adequately explain the extent of the departure.
The district court determined that the upward departure was
appropriate because Ruiz’s criminal history category VI
inadequately reflected the seriousness of his criminal background
and the likelihood of recidivism. See U.S.S.G. § 4A1.3, p.s.
Ruiz’s adjusted criminal history score of 14 placed him in a
criminal history category VI. Not considered in that computation
were Ruiz’s prior convictions for disorderly conduct, unlawful
carrying of a weapon, criminal mischief, and failure to identify to
a police officer. Additionally, he had prior arrests for assault,
criminal mischief, evading arrest, and disorderly conduct – charges
that were dismissed as a result of his pleading guilty to other
offenses.
Ruiz maintains that the district court improperly treated as
“serious dissimilar, criminal conduct”, U.S.S.G. § 4A1.2 comment 8,
his prior uncounted conviction for criminal mischief for damaging
a screen door and wall while intoxicated. Even if this were in
error, Ruiz would not be entitled to relief because the district
court provided other valid reasons justifying the departure. See
United States v. Kay, 83 F.3d 98, 101 (5th Cir.), cert. denied, 519
U.S. 898 (1996).
Ruiz also asserts that, as a ground for departure, the
district court improperly relied on his arrest record. The court,
however, relied on more than the arrest record and explicitly
considered, among other things, the violent nature of the conduct
for which Ruiz was previously arrested. See § 4A1.3, p.s.
2
Ruiz contends that the district court erred in classifying his
unauthorized use of a vehicle (UUV) conviction as a crime of
violence. After he filed his appeal brief, our court decided the
risk to persons UUV poses makes it categorically a crime of
violence under § 4B1.2. See United States v. Jackson, 220 F.3d
635, 639 (5th Cir. 2000). With the inclusion of the UUV
conviction, Ruiz’s crime carried a base offense level of 24,
pursuant to § 2K2.1(a)(2), which was four levels greater than the
base offense level calculated by the presentencing report.
Therefore, the district court did not abuse its discretion in
departing upward three offense levels based, in part, on its belief
that Ruiz’s UUV conviction was a crime of violence.
Finally, we review only for plain error Ruiz’s contention, for
the first time on appeal, that the district court failed to explain
adequately the extent of the departure. “[T]he district court
[must] consider each intermediate adjustment and state that it has
done so, and explain why the guideline category is inappropriate
and why the category chosen is appropriate. Ordinarily such
explanation will make clear, either implicitly or explicitly, why
the intermediate adjustments are inadequate”. United States v.
Daughenbaugh, 49 F.3d 171, 175 (5th Cir.) (footnote omitted), cert.
denied, 516 U.S. 900 (1995). In arriving at the sentence imposed,
the district court concluded that Ruiz’s persistent criminal
history of violence required a three-level upward adjustment to his
offense level. There was no plain error.
In that the decision to depart upward was not an abuse of
discretion, see United States v. Alford, 142 F.3d 825, 830 (5th
3
Cir.), cert denied, 525 U.S. 1003 (1998), and in that the district
court did not plainly err in explaining the extent of that
departure, see id., the judgment is
AFFIRMED.
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