United States v. Monjaraz-Reyes

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 18, 2008
No. 07-20735
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ARTURO MONJARAZ-REYES, also known as Arturo Monjaraz, also known as
Arthur Monjaraz
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:07-CR-127-1
Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Arturo Monjaraz-Reyes (Monjaraz) appeals the sentence imposed following
his guilty plea conviction for being found unlawfully in the United States
following removal subsequent to a conviction for an aggravated felony. Monjaraz
argues that the district court abused its discretion by upwardly departing from
the guidelines sentence range based upon his criminal history because his
criminal history was not sufficiently egregious to justify an upward departure
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-20735
from criminal history category VI. He maintains that the extent of the
departure was arbitrary and not supported by the record. Monjaraz additionally
argues that the sentence was unreasonable because the district court did not
consider his proffered mitigation based upon his ties to the United States.
Under the discretionary sentencing system established by United States
v. Booker, 543 U.S. 220 (2005), a district court may impose three types of
sentences: “(1) a sentence within a properly calculated Guideline range; (2) a
sentence that includes an upward or downward departure as allowed by the
Guidelines, which sentence is also a Guideline sentence; or (3) a non-Guideline
sentence which is either higher or lower than the relevant Guideline sentence.”
United States v. Tzep-Mejia, 461 F.3d 522, 525 (5th Cir. 2006). The sentence in
this case was a guidelines sentence with an upward departure pursuant to
U.S.S.G. § 4A1.3.1
Monjaraz had 21 criminal history points, far more than the 13 points
needed for criminal history category VI. He was also apprehended for being
unlawfully present in the United States following removal on two occasions, but
he was removed without being criminally charged. While Monjaraz argued that
these removals were akin to an arrest record that should not be considered for
purposes of making an upward departure, see U.S.S.G. § 4A1.3(a)(3), the
removals were properly considered by the district court as prior civil
adjudications of similar misconduct and similar adult criminal conduct not
resulting in a conviction. See § 4A1.3(a)(2)(C), (E). Given Monjaraz’s long
criminal record and repeated unlawful presence in the United States, the district
court did not abuse its discretion by making an upward departure pursuant to
§ 4A1.3. See United States v. Pennington, 9 F.3d 1116, 1118 (5th Cir. 1993);
United States v. Medina-Gutierrez, 980 F.2d 980, 984 (5th Cir. 1992).
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We do not reach the district court’s alternative imposition of the same sentence as a
non-guidelines upward deviation from the guidelines range.
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No. 07-20735
Although the district court did not discuss its reasons why intervening
offense levels were inadequate, those reasons can be gleaned from the court’s
discussion justifying the upward departure. Monjaraz has not shown that the
district court made a procedural error in applying the upward departure. See
United States v. Zuniga-Peralta, 442 F.3d 345, 348 n.2 (5th Cir. 2006).
Given that the district court made no significant procedural error when it
upwardly departed, we next look to whether the sentence was substantively
reasonable. See Gall v. United States, 128 S. Ct. 586, 597 (2007). The district
court imposed a sentence of 71 months of imprisonment, 30 months greater than
the upper limit of the guidelines sentence range applicable without the upward
departure. Given Monjaraz’s extensive criminal record, Monjaraz has not shown
that the extent of the departure was an abuse of discretion or that the sentence
was unreasonable. See Zuniga-Peralta, 442 F.3d at 346-48; United States v. Lee,
358 F.3d 315, 328-29 (5th Cir. 2004); United States v. McKenzie, 991 F.2d 203,
205 n.7, 206 n.8 (5th Cir. 1993).
AFFIRMED.
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