United States v. Javier Gonzalez

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 13, 2007
No. 07-40444
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff–Appellee
v.
ARTEMIO JAVIER GONZALEZ
Defendant–Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:06-CR-784-ALL
Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
Artemio Javier Gonzalez appeals the 27-month sentence imposed following
his guilty plea conviction for transporting unlawful aliens in violation of 8 U.S.C.
§ 1324. The district court departed upwardly from a range of 6 to 12 months to
a sentence of 27 months, apparently based on prior arrests. As Gonzalez
concedes, our review is limited to plain error. See United States v. Jones, 489
F.3d 679, 681 (5th Cir. 2007).
*
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should not be published and is not precedent except under the limited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. 07-40444
It is plain error for a district court to depart upwardly based solely on a
prior arrest record. Id. at 681; see also United States v. Jones, 444 F.3d 430, 434-
37 (5th Cir. 2006), cert. denied, 126 S. Ct. 2958 (2006). Given the Government’s
concession of reversible plain error, we VACATE the sentence imposed and
REMAND this matter for resentencing. We express no opinion on whether a
non-guidelines sentence above the advisory range or an upward departure may
be appropriate on some other basis.
Because this appeal has been expedited, our rules require issuance of the
mandate forthwith automatically. See 5TH CIR. R. 41.4. Thus, the motion for
summary disposition and issuance of the mandate forthwith is DENIED AS
UNNECESSARY.
2