United States v. Zamarron-Cervantes ( 1998 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-20267
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PEDRO ZAMARRON-CERVANTES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-97-CR-272-1
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December 23, 1998
Before JOLLY, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
Pedro Zamarron-Cervantes appeals his sentence imposed by the
district court for being present in the United States, without
permission, following deportation. He argues that the district
court did not provide notice of the specific grounds that it intended
to use for an upward departure and that the district court improperly
departed upward from the Sentencing Guidelines.
A district court may depart upward from the guidelines if
the court finds that an aggravating circumstance exists that was
*
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that this opinion should not be published and is not precedent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. 98-20267
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not adequately taken into consideration by the Sentencing
Commission in formulating the guidelines. 18 U.S.C. § 3553(b).
The district court must state “the specific reason for the
imposition of a sentence” outside the guideline range. 18 U.S.C.
§ 3553(c)(2). A district court’s decision to depart from the
guidelines is reviewed for an abuse of discretion. United States
v. Ashburn, 38 F.3d 803, 807 (5th Cir. 1994)(en banc). A
departure from the guidelines will be affirmed on appeal if
(1) the district court gives acceptable reasons for departing,
and (2) the extent of the departure is reasonable. Id.A sentencing court must provide the parties an opportunity
to comment upon matters relating to the appropriate sentence.
Fed. R. Crim. P. 32(c)(1). Rule 32, Fed. R. Crim. P., requires
that the district court give the parties reasonable notice that
it is contemplating making an upward departure. Burns v. United
States, 501 U.S. 129, 138 (1991). “This notice must specifically
identify the ground on which the district court is contemplating
an upward departure.” Id.We have reviewed the record and the briefs of the parties
and conclude that the district court did not abuse its discretion
in departing upward from the Sentencing Guidelines. The district
court provided adequate reasons for its incremental upward
departures. The district court demonstrated proper reliance on
the guideline levels and consideration of the number and type of
crimes committed. The departure was not unreasonably excessive in
light of the defendant’s extensive criminal history. A review of
the record indicates that the Presentence Report addressed the
No. 98-20267
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possibility of an upward departure and the grounds therefor and
provided Zamarron-Cervantes with adequate notice.
The judgment of the district court is AFFIRMED.