United States v. Leija-Martinez

Case: 22-40709 Document: 00516724737 Page: 1 Date Filed: 04/25/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 22-40709
FILED
April 25, 2023
Summary Calendar
____________ Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Jaime Leija-Martinez,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:22-CR-452-1
______________________________
Before Jones, Haynes, and Oldham, Circuit Judges.
Per Curiam:*
Jaime Leija-Martinez appeals the 40-month sentence imposed
following his guilty-plea conviction for illegal reentry. Although his advisory
guidelines range was 24 to 30 months, the district court departed upwardly
pursuant to U.S.S.G. § 4A1.3, which authorizes upward departures “[i]f
reliable information indicates that the defendant’s criminal history category
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 22-40709
substantially under-represents the seriousness of the defendant’s criminal
history or the likelihood that the defendant will commit other crimes.”
§ 4A1.3(a)(1), p.s. Leija-Martinez challenges the decision to depart as well
as the substantive reasonableness of his sentence.
Our analysis necessarily begins with the claim of procedural error. In
applying § 4A1.3, the district court took account of numerous convictions
that received no criminal history points because of their age. Leija-Martinez
objects to this based on commentary to § 4A1.2 which states that if a prior
sentence is too old to be counted but is “evidence of similar, or serious
dissimilar, criminal conduct, the court may consider this information in
determining whether an upward departure is warranted under § 4A1.3.”
U.S.S.G. § 4A1.2, comment. (n.8). He argues that his uncounted convictions
were not a valid basis for departure because the conduct they reflect is
dissimilar to his present offense and not serious.
Because Leija-Martinez did not present this argument to the district
court, we review it for plain error only. See United States v. Gomez-Valle, 828
F.3d 324, 328 (5th Cir. 2016). A defendant establishes plain error by showing
(1) error (2) that is clear or obvious, and (3) that affected his substantial
rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If these showings
are made, this court has the discretion to correct the error but should do so
only if it “seriously affects the fairness, integrity or public reputation of
judicial proceedings.” Id. (internal quotation marks, brackets, and citation
omitted).
For purposes of § 4A1.2, comment. (n.8), the definition of “serious”
criminal conduct remains unsettled in this circuit. Furthermore, the record
indicates the district court relied not only on the uncounted convictions but
also on the fact that Leija-Martinez had continued to offend more recently.
Cf. United States v. Lavalais, 960 F.3d 180, 189 (5th Cir. 2020) (noting that
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No. 22-40709
lack of deterrence and continued criminal activity are among the factors a
court may consider when weighing an upward departure under § 4A1.3). We
accordingly conclude that the district court did not plainly err in granting the
departure. See Puckett, 556 U.S. at 135.
Leija-Martinez also challenges the substantive reasonableness of his
sentence. This court applies an abuse-of-discretion standard in reviewing for
substantive reasonableness. See Gall v. United States, 552 U.S. 38, 51 (2007).
Here, the record shows the district court considered all relevant information
and arguments as well as the sentencing factors in 18 U.S.C. § 3553(a). There
is no indication it relied on an irrelevant or improper factor. While Leija-
Martinez again objects to the district court’s consideration of his full criminal
history, a sentencing court is not only permitted but required to consider
“the history and characteristics of the defendant,” § 3553(a)(1), and
disagreement with how the court weighed relevant factors “is not a sufficient
ground for reversal.” United States v. Malone, 828 F.3d 331, 342 (5th Cir.
2016). “Moreover, the mere fact that the upward departure nearly doubled
the Guidelines range does not render it unreasonable.” United States v.
Simkanin, 420 F.3d 397, 419 (5th Cir. 2005); cf. United States v. Zuniga-
Peralta, 442 F.3d 345, 346-48 (5th Cir. 2006) (affirming a 60-month sentence
following departure from a range of 27-33 months).
AFFIRMED.
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