United States v. Galvez-Tapia

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 7, 2002
• Docket: 01-50802
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-50802 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN GALVEZ-TAPIA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. A-00-CR-179-ALL-SS -------------------- February 7, 2002 Before DAVIS, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM:*

Juan Galvez-Tapia appeals his sentence following his guilty-

plea conviction for illegal reentry into the United States, a

violation of 8 U.S.C. § 1326. He argues that the district court

erred by not giving an adequate explanation for its decision to

upwardly depart at sentencing. “A departure from the guidelines

will be upheld if the district court provided acceptable reasons

for the departure and the departure was reasonable.” United States

v. McKenzie, 991 F.2d 203, 204 (5th Cir. 1993).

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-50802 -2-

The district court explained both at sentencing and in the

judgment that it upwardly departed due to Galvez-Tapia’s extensive

criminal history. This is an acceptable basis for departure. See

United States v. Ashburn, 38 F.3d 803, 809 (5th Cir. 1994) (en

banc). The district court also explained at sentencing why a two-

level departure was appropriate and thus complied with the

principles set forth in United States v. Lambert, 984 F.2d 658,

662-63 (5th Cir. 1993) (en banc). The departure itself was not

unreasonable when compared to others that have been upheld. See,

e.g., Ashburn, 38 F.3d at 809.

Galvez-Tapia has not shown that the district court’s decision

to depart was based on an unacceptable reason or that the departure

itself was unreasonable. Accordingly, the judgment of the district

court is AFFIRMED.