United States v. Aguilar

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 20, 1999
• Docket: 98-51058
• Status: Unpublished

Opinion

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 R. 47.5 the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.