United States v. Flores-Ramirez

United States Court of Appeals
Fifth Circuit
F I L E D
June 19, 2003
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 02-41714
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROGELIO FLORES-RAMIREZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-02-CR-486-1
--------------------
Before DAVIS, JONES and STEWART, Circuit Judges.
PER CURIAM:*
Rogelio Flores-Ramirez appeals his sentence for illegal
reentry. He argues that the district court erred in upwardly
departing from the Sentencing Guidelines pursuant to U.S.S.G.
§ 4A1.3 (2001) based on its determination that his criminal history
score was under-represented. We review this argument for plain
error only and affirm. See United States v. Ravitch, 128 F.3d 865,
869 (5th Cir. 1997).
*
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this opinion should not be published and is not precedent except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. 02-41714
-2-
Flores argues that it was error for the district court to
consider his dismissed charge for aggravated sexual assault of a
child as a basis for upward departure. If it is assumed arguendo
that this charge was an invalid factor for consideration, remand is
nevertheless not automatically required, because the district court
could impose the same sentence on remand. See Williams v. United
States, 503 U.S. 193, 202-03 (1992); Ravitch, 138 F.3d at 869.
Flores’s “prior similar adult conduct” of entering the United
States illegally on four occasions was an appropriate factor on
which to base an upward departure, see U.S.S.G. § 4A1.3(e), as was
information concerning four misdemeanor sentences that were not
used in computing his criminal history category. Id. at §
4A1.3(a). We reject Flores’s contention that his misdemeanor
offenses for driving under the influence and while intoxicated were
too remote and minor to serve as a basis for upward departure. See
U.S.S.G. § 4A1.2, comment. (n.5); United States v. Delgado-Nunez,
295 F.3d 494, 498 (5th Cir. 2002).
AFFIRMED.