United States v. Vargas-Garcia ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 14, 2008
No. 07-20343
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
GUADALUPE VARGAS-GARCIA, also known as Guadalupe Vargas, also known
as Jose Luis Vargas, also known as Armando Garcia Vargas, also known as Jose
Luis Garcia Vargas, also known as Fernando Flores
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:06-CR-416-1
Before GARWOOD, WIENER and BARKSDALE, Circuit Judges.
PER CURIAM:*
Guadalupe Vargas-Garcia (Vargas) appeals the 51-month sentence
imposed in April 2007 following his guilty plea conviction of being found
unlawfully in the United States following deportation. Vargas argues that the
district court erred in upwardly departing under U.S.S.G. § 4A1.3, p.s., based on
*
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should not be published and is not precedent except under the limited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. 07-20343
the underrepresentation of his criminal history. He also challenges the extent
of the upward departure.
We review the decision of the district court to depart and the extent of the
departure for an abuse of discretion, ultimately determining whether the
sentence is reasonable under 18 U.S.C. § 3553(a). See United States v. Saldana,
427 F.3d 298, 308 (5th Cir. 2005); United States v. Zuniga-Peralta, 442 F.3d 345,
347 (5th Cir.), cert. denied, 126 S. Ct. 2954 (2006). See also Gall v. United
States, 128 S.Ct. 586, 596 (2007) (“[T]he abuse-of-discretion standard of review
applies to appellate review of all sentencing decisions – whether inside or outside
the Guidelines range.”).
The district court’s decision to upwardly depart was based on the factors
in § 3553(a), including Vargas’s history and characteristics, the need to promote
respect for the law, the need for adequate deterrence, and the need to protect the
public from future crimes by Vargas. The district court relied, in part, on the
short time frame in which Vargas had accumulated eight prior convictions for
driving while intoxicated (mostly with probated sentences), as well as his two
prior illegal reentry offenses, and found that it was likely that Vargas would
return to the United States illegally1 and might cause serious injury or kill
someone while driving while intoxicated.2 The district court also noted that
several of Vargas’s prior convictions had not been included in his criminal
history score pursuant to U.S.S.G. § 4A1.1(c). Because the upward departure
1
The court also noted that “on two occasions he [Vargas] illegally re-
entered the United States within approximately 60 days” after deportation, and
that “[o]n one other occasion he illegally re-entered within nine months, and on
another occasion within 16 months of his deportation.” These four reentries
were all subsequent to December 1, 2002.
2
Two of the DWI convictions involved driving on the wrong side of the
road, in one case forcing oncoming traffic to veer off of the roadway to avoid
collision; another DWI involved Vargas’s vehicle almost hitting an officer on
patrol.
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No. 07-20343
advanced the objectives in § 3553(a) and is justified by the facts of the case, the
district court did not abuse its discretion in upwardly departing from the
advisory guidelines range. See Zuniga-Peralta, 442 F.3d at 347; United States
v. Lee, 358 F.3d 315, 328-29 (5th Cir. 2004).
In challenging the extent of the district court’s departure, Vargas also
asserts that his sentence must be vacated because the district court did not
specifically address each intervening offense level when determining that a
departure to criminal history category VI and offense level 15 was warranted.
The district court explicitly stated that it had considered the intervening offense
levels in reaching the extent of its departure but that the increase was
appropriate due to the extent and nature of Vargas’s criminal history and the
likelihood of his recidivism. The court was not required to do more. See United
States v. Lambert, 984 F.2d 658, 663-64 (5th Cir. 1993) (en banc) (holding a
district court need not mechanically discuss every level it rejects where its
reasons are implicit). Given the facts of this case and the district court’s reasons
for departing, Vargas has not shown that the court abused its discretion in the
extent of its departure. See Lee, 358 F.3d at 328-29; Zuniga-Peralta, 442 F.3d
at 347-48.
Vargas argues for the first time on appeal that the district court
improperly relied on his prior arrests when sentencing him. This argument is
without merit as the district court necessarily was relying on Vargas’s prior
convictions because (as the PSR reflected) Vargas had no prior arrests for which
he was not convicted.
In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Vargas challenges
the constitutionality of 8 U.S.C. § 1326(b)’s treatment of prior felony and
aggravated felony convictions as sentencing factors rather than elements of the
offense that must be found by a jury. This argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). United States v.
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No. 07-20343
Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), cert. denied, 128 S. Ct. 872(2008).
AFFIRMED.
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