United States v. Oscar Pena , 407 F. App'x 787 ( 2011 )


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  •      Case: 10-40170 Document: 00511340629 Page: 1 Date Filed: 01/05/2011
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    January 5, 2011
    No. 10-40170
    Summary Calendar                         Lyle W. Cayce
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee
    v.
    OSCAR PENA,
    Defendant-Appellant
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 2:09-CR-865-1
    Before JOLLY, GARZA, and STEWART, Circuit Judges.
    PER CURIAM:*
    Oscar Pena appeals his sentence following his guilty plea conviction for
    transporting an undocumented alien within the United States by means of a
    motor vehicle. Pena was sentenced to sixty months of imprisonment and three
    years of supervised release. His sentence constituted an upward departure,
    pursuant to U.S.S.G. § 4A1.3, from his advisory guidelines range of twenty-one
    to twenty-seven months of imprisonment.
    *
    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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-40170 Document: 00511340629 Page: 2 Date Filed: 01/05/2011
    No. 10-40170
    Although Pena’s plea agreement contained a provision waiving his right
    to appeal his sentence, he reserved the right to appeal an upward departure
    from the Sentencing Guidelines that had not been requested by the Government.
    Here, the district court upwardly departed above the advisory guidelines range
    even though the Government requested a sentence within that range. Because
    the district court upwardly departed without a Government recommendation,
    the exception to the waiver provision applies.
    Pena argues that the district court imposed an unreasonable sentence by
    opting to depart upwardly under § 4A1.3. He contends that the court justified
    its decision to depart upwardly upon prior convictions and prior conduct that did
    not count for criminal history purposes, and which were poor predictors of his
    recidivism or his criminality. Pena also maintains that his criminal history does
    not illustrate a penchant for violence, and that his instant offense was
    nonviolent in nature.
    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 
    18 U.S.C. § 3553
    (a)(2)
    and are justified by the particular facts of the case. 
    Id.
    In this case, the district court did not abuse its discretion in imposing an
    upward departure based on its conclusion that Pena’s criminal history score
    under-represented the seriousness of his past convictions and the likelihood that
    he would continue his pattern of criminal activity. See Zuniga-Peralta, 
    442 F.3d at 347-48
     (5th Cir. 2006). The district court’s stated reasons for the departure–
    i.e., Pena’s pattern of habitual criminal behavior, the lack of deterrence from his
    2
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    No. 10-40170
    prior sentences, his disregard for the law, his unwillingness to change his
    behavior, and the likelihood that he would commit future crimes– advance the
    objectives set forth in § 3553(a)(2). Zuniga-Peralta, 
    442 F.3d at 347
    ; § 3553(a)(2).
    Likewise, the facts of the case justified the departure. Zuniga-Peralta, 
    442 F.3d at 347
    . Pena previously was convicted of burglary of a habitation, murder, and
    aggravated assault, and was not assigned any criminal history points for those
    convictions because of their age. Further, he was involved in other serious
    criminal conduct, including burglary of a habitation, murder, and making
    terroristic threats, for which he was not ultimately convicted. Thus, the district
    court’s decision to depart upwardly was permissible. Pena’s convictions and
    conduct, regardless of their recency, were evidence of serious criminal conduct
    and were relevant to several § 3553(a) factors, including his violent history and
    the need for the sentence to provide just punishment and to protect the public.
    See U.S.S.G. § 4A1.2(e) cmt. n.8; United States v. Beasley, 
    90 F.3d 400
    , 403 (9th
    Cir. 1996).
    Pena also argues that the sentence imposed was unreasonable because the
    district court failed to give weight to his drug addiction, which he contends
    should have been considered as an explanation for his criminal history. He
    asserts that his past drug abuse explains his criminality and should have been
    evaluated by the district court as part of his personal history and characteristics.
    However, the record supports that Pena’s history of drug use was fully before the
    district court. The court’s decision to impose an upward departure despite
    having knowledge of Pena’s drug addiction constituted an implicit rejection of
    Pena’s assertion that he was entitled to sentencing leniency on this basis. See
    United States v. Smith, 
    440 F.3d 704
    , 707 (5th Cir. 2006). The district court
    exercised its discretion and decided to place greater emphasis on factors that
    favored an upward departure rather than those that might favor a more lenient
    sentence.
    3
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    No. 10-40170
    Pena also argues that the extent of the departure– thirty-three months
    above the top of his advisory guidelines range– was excessive. He asserts that
    the departure caused a disparity between him and similarly situated defendants,
    and denied him credit for acceptance of responsibility.          The extent of the
    departure is reviewed for abuse of discretion. See Zuniga-Peralta, 
    442 F.3d at 347
    .
    This court has upheld upward departures of the same extent and of
    greater magnitude. See, e.g., United States v. Herrera-Garduno, 
    519 F.3d 526
    ,
    531-32 (5th Cir. 2008) (affirming upward departure from guidelines range of
    twenty-one to twenty-seven months, to sixty months when underlying
    circumstances rendered guidelines sentence unreasonable); Zuniga-Peralta, 
    442 F.3d at 347-48
     (upholding a departure from thirty-three to sixty months where
    defendant had, inter alia, prior uncounted offenses and deportations); United
    States v. Jones, 
    444 F.3d 430
    , 433, 442 (5th Cir. 2006) (upholding 120-month
    sentence where maximum of guidelines range was fifty-seven months). That we
    might conclude that a different sentence is appropriate “is an insufficient
    justification for reversal of the district court, because the sentencing judge is in
    a superior position to evaluate the § 3553(a) factors.”           United States v.
    Armstrong, 
    550 F.3d 382
    , 405 (5th Cir. 2008) (citation omitted). Pena has not
    identified any similarly situated defendants who received a lesser sentence or
    shown that any disparity created by the sentence imposed in this case was
    unwarranted in light of his criminal history and history of recidivism. See §
    3553(a)(6). Moreover, in light of all the facts, the district court did not abuse its
    discretion in departing upwardly based upon Pena’s criminal history despite his
    acceptance of responsibility for this offense. Pena therefore has not shown that
    the sixty-month sentence was an abuse of discretion. See Zuniga-Peralta, 
    442 F.3d at 347-48
    .
    AFFIRMED.
    4