United States v. Leija-Martinez

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 25, 2023
• Docket: 22-40709
• Status: Unpublished

Opinion

Case: 22-40709 Document: 00516724737 Page: 1 Date Filed: 04/25/2023

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit

No. 22-40709 FILED April 25, 2023 Summary Calendar ____________ Lyle W. Cayce Clerk United States of America,

Plaintiff—Appellee,

versus

Jaime Leija-Martinez,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Southern District of Texas USDC No. 1:22-CR-452-1 ______________________________

Before Jones, Haynes, and Oldham, Circuit Judges. Per Curiam:* Jaime Leija-Martinez appeals the 40-month sentence imposed following his guilty-plea conviction for illegal reentry. Although his advisory guidelines range was 24 to 30 months, the district court departed upwardly pursuant to U.S.S.G. § 4A1.3, which authorizes upward departures “[i]f reliable information indicates that the defendant’s criminal history category

_____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 22-40709 Document: 00516724737 Page: 2 Date Filed: 04/25/2023

No. 22-40709

substantially under-represents the seriousness of the defendant’s criminal history or the likelihood that the defendant will commit other crimes.” § 4A1.3(a)(1), p.s. Leija-Martinez challenges the decision to depart as well as the substantive reasonableness of his sentence. Our analysis necessarily begins with the claim of procedural error. In applying § 4A1.3, the district court took account of numerous convictions that received no criminal history points because of their age. Leija-Martinez objects to this based on commentary to § 4A1.2 which states that if a prior sentence is too old to be counted but is “evidence of similar, or serious dissimilar, criminal conduct, the court may consider this information in determining whether an upward departure is warranted under § 4A1.3.” U.S.S.G. § 4A1.2, comment. (n.8). He argues that his uncounted convictions were not a valid basis for departure because the conduct they reflect is dissimilar to his present offense and not serious. Because Leija-Martinez did not present this argument to the district court, we review it for plain error only. See United States v. Gomez-Valle, 828 F.3d 324, 328 (5th Cir. 2016). A defendant establishes plain error by showing (1) error (2) that is clear or obvious, and (3) that affected his substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If these showings are made, this court has the discretion to correct the error but should do so only if it “seriously affects the fairness, integrity or public reputation of judicial proceedings.” Id. (internal quotation marks, brackets, and citation omitted). For purposes of § 4A1.2, comment. (n.8), the definition of “serious” criminal conduct remains unsettled in this circuit. Furthermore, the record indicates the district court relied not only on the uncounted convictions but also on the fact that Leija-Martinez had continued to offend more recently. Cf. United States v. Lavalais, 960 F.3d 180, 189 (5th Cir. 2020) (noting that

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lack of deterrence and continued criminal activity are among the factors a court may consider when weighing an upward departure under § 4A1.3). We accordingly conclude that the district court did not plainly err in granting the departure. See Puckett, 556 U.S. at 135. Leija-Martinez also challenges the substantive reasonableness of his sentence. This court applies an abuse-of-discretion standard in reviewing for substantive reasonableness. See Gall v. United States, 552 U.S. 38, 51 (2007). Here, the record shows the district court considered all relevant information and arguments as well as the sentencing factors in 18 U.S.C. § 3553(a). There is no indication it relied on an irrelevant or improper factor. While Leija- Martinez again objects to the district court’s consideration of his full criminal history, a sentencing court is not only permitted but required to consider “the history and characteristics of the defendant,” § 3553(a)(1), and disagreement with how the court weighed relevant factors “is not a sufficient ground for reversal.” United States v. Malone, 828 F.3d 331, 342 (5th Cir. 2016). “Moreover, the mere fact that the upward departure nearly doubled the Guidelines range does not render it unreasonable.” United States v. Simkanin, 420 F.3d 397, 419 (5th Cir. 2005); cf. United States v. Zuniga- Peralta, 442 F.3d 345, 346-48 (5th Cir. 2006) (affirming a 60-month sentence following departure from a range of 27-33 months). AFFIRMED.