United States v. Alfredo Guerrero

633 F. App'x 241

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 5, 2016
• Docket: 15-40448
• Status: Unpublished

Opinion

PER CURIAM: *

Alfredo Guerrero appeals his 30-month sentence for knowingly transporting an illegal alien "for the purpose of financial gain. The sentence constituted a nine-month increase from the applicable guidelines range of 15-21 months, which the district court stated was an upward departure pursuant to two sections of the Sentencing Guidelines. The district court’s statements at sentencing reflected concern that Guerrero had a prior conviction for the same offense for which he had received a 20-month sentence, only one month below the top of the current guidelines range.

On appeal, Guerrero asserts that the district court abused its discretion by imposing the upward .departure. He contends that, the departure may not be justified under § 5K2.0, which covers aggravating or mitigating circumstances, because the commentary to this policy statement states that departures based on criminal history should be considered under § 4A1.3. But, he maintains, the court could not rely on § 4A1.3 to support the departure because nothing in that section’s policy statement authorizes an upward departure based on the similarity of the instant offense to the conduct underlying a prior conviction. The Government asserts that we should review Guerrero’s claims for plain error because he did not raise these grounds in the district court.

We need not resolve the proper standard of review, as Guerrero’s claims fail even under the more onerous abuse-of-discretion standard. See United States v. Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir.2006). This court has upheld an upward departure based on the similarity between the defendant’s prior and current convictions under each of the policy statements relied upon by the district court. See United States v. Schmeltzer, 20 F.3d 610, 613 (5th Cir.1994) (§ 5K2.0); United States v. De Luna-Trujillo, 868 F.2d 122, 124-25 (5th Cir.1989) (§ 4A1.3). Consequently, the judgment of the district court is AFFIRMED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cm. R. 47.5.4.