United States v. Castillo

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-40718 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PEDRO CASTILLO, JR,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. M-01-CR-592-1 -------------------- December 27, 2002

Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Pedro Castillo, Jr., appeals from his sentence for being a

felon in possession of ammunition. He contends that the district

court erred by adjusting his offense level because a weapon found

on his son was stolen and that the district court erred by

departing upward from the guideline offense level.

The district court did not err by adjusting Castillo’s

offense level because the weapon was stolen. See U.S.S.G.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-40718 -2-

§ 2K2.1(b)(4). The finding that Castillo knew about the stolen

weapon was not clearly erroneous. United States v. Fair,

979 F.2d 1037, 1038 (5th Cir. 1992).

The district court did not abuse its discretion by departing

upward from the guideline sentencing range in Castillo’s case.

United States v. Ashburn, 38 F.3d 803, 807 (5th Cir. 1994)(en

banc). We need not address whether all of the grounds on which

the district court based its upward departure decision were

appropriate. Castillo was charged with murdering his wife after

she consented for the family residence to be searched in

conjunction with the felon-in-possession offense. He also was

charged with aggravated assault while in jail, and two previous

convictions involving violent behavior had resulted in a total of

two criminal history points. An upward departure on the factors

mentioned above was appropriate. See U.S.S.G. § 4A1.3, p.s. The

district court’s discussion of the 10-year term of imprisonment

ultimately chosen indicated that Castillo would have received

that sentence regardless of consideration of any conceivably

impermissible departure factors. Castillo’s substantial rights

were not violated by the departure. United States v. Cade, 279

F.3d 265, 270 (5th Cir. 2002).

The district court stated that it had considered every

offense level up to the statutory maximum of 10 years’

imprisonment and that none of them satisfied the court’s concerns

regarding the reasons for departure. The district court No. 02-40718 -3-

adequately explained why it chose the 10-year sentence and why

intermediate categories were unsatisfactory. United States

v. Daugenbaugh, 49 F.3d 171, 173-74 (5th Cir. 1995); United

States v. Lambert, 984 F.2d 658, 662-63 (5th Cir. 1993)(en banc).

AFFIRMED.