United States v. Carbajal-Martinez

U.S. Court of Appeals for the Fifth Circuit
United States v. Carbajal-Martinez, 87 F. App'x 368 (5th Cir. 2004)
Smith, Duhé, Wiener

United States v. Carbajal-Martinez

Opinion

PER CURIAM. 1

Jose Carbajal-Martinez appeals his 180-month sentence following his guilty-plea conviction for illegal reentry into the United States following a deportation subsequent to a conviction for an aggravated felony, in violation of 8 U.S.C. § 1326(a), (b)(2). Carbajal contends that the district court erred in departing upward from a guideline sentencing range of 77 to 96 months.

Carbajal argues that the district court made several erroneous factual findings. After reviewing the record, we conclude that the district court’s factual findings *369 regarding the nature and extent of Carbajal’s criminal history were not clearly erroneous. See United States v. Harris, 293 F.3d 863, 871 (5th Cir.), cert. denied, 537 U.S. 950, 123 S.Ct. 395, 154 L.Ed.2d 296 (2002).

Carbajal also argues that the district court’s reasons for departure were not supported by the facts of the case. The district court correctly found that Carbajal’s criminal history category significantly under-represented the seriousness of his criminal history. Additionally, his criminal history category failed to adequately reflect Carbajal’s likelihood for recidivism. Thus, whether the standard of review is abuse of discretion or de novo, the district court did not err in departing upward under U.S.S.G. § 4A1.3, p.s. See U.S.S.G. § 4A1.3, p.s.

The district court’s reasons for departure, which included deterrence and the protection of the public, were acceptable. See United States v. Ashburn, 38 F.3d 803, 807 (5th Cir. 1994) (en banc). The extent of the departure was reasonable and, at sentencing, the district court adequately articulated its reasons for the extent of the upward departure. See United States v. Daughenbaugh, 49 F.3d 171, 175 (5th Cir. 1995); United States v. Lambert, 984 F.2d 658, 662-63 (5th Cir. 1993) (en banc).

Carbajal argues that the district court did not give sufficiently specific written reasons for the extent of its upward departure. This argument lacks merit. In the written order of judgment, the district court adopted, by reference, as its reasons the factual findings and legal conclusions found in the presentence report and those made at sentencing. Thus, the district court did give specific reasons for the extent of the departure. See 18 U.S.C. § 3553(c).

AFFIRMED.

1

. 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.

Reference

Full Case Name
UNITED STATES of America, Plaintiff-Appellee, v. Jose CARBAJAL-MARTINEZ, Defendant-Appellant
Cited By
2 cases
Status
Unpublished