United States v. Aguilar

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-51058
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PABLO AGUILAR,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-98-CR-788-ALL
May 19, 1999
Before GARWOOD, JOLLY and BARKSDALE, Circuit Judges.
PER CURIAM:*
Pablo Aguilar appeals his sentence following his guilty-plea
conviction for impersonating an immigration officer, in violation
of 18 U.S.C. § 912. Aguilar contends that the district court
failed to give acceptable reasons justifying its upward departure
and that the departure was unreasonable. The decision to depart
*
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opinion should not be published and is not precedent except under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.
from the Sentencing Guidelines is reviewed for abuse of discretion.
United States v. McKenzie, 991 F.2d 203, 204 (5th Cir. 1993). An
upward departure will be affirmed if the district court offers
acceptable reasons for the departure and the departure is
reasonable. United States v. Lambert, 984 F.2d 658, 663 (5th Cir.
1993) (en banc).
The district court adequately articulated its reasons for the
upward departure by discussing Aguilar’s prior criminal activities
and its opinion that the applicable guideline range did not
adequately reflect the seriousness and extent of his past crimes
and did not address his recidivist tendencies. United States v.
Ashburn, 38 F.3d 803, 809 (5th Cir. 1994) (en banc); United States
v. Chappell, 6 F.3d 1095, 1102 (5th Cir. 1993); United States v.
Laury, 985 F.2d 1293, 1310 (5th Cir. 1993). The district court
departed upward on this basis from the 18 to 24 month guideline to
the 36 month statutory maximum, indicating along the way that it
felt 40 months would be appropriate. Although the district court
did not expressly examine each intervening guideline category, its
detailed explanation of why it felt a 12 month upward departure was
called for on the foregoing bases makes it evident why it rejected
the three possible lower levels of upward departure (3 months each)
calculated on such a basis. Under the circumstances, this was
adequate. McKenzie at 205. As we said in Ashburn:
“The district court did not expressly examine each
intervening criminal history category. However, we do
not require the district court to go through such a
‘ritualistic exercise’ where, as here, it is evident from
the stated grounds for departure why the bypassed
criminal history categories were inadequate.” Id. at
2
 809.
With respect to the reasonableness of the departure, the
district court has wide discretion in determining the extent of the
departure. United States v. Moore, 997 F.2d 30, 37 (5th Cir.
1993). We have reviewed the record and the briefs on appeal and
find that the upward departure was not unreasonable. Aguilar’s
sentence is
AFFIRMED.
3