United States v. Padilla-Alvarez ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-20092
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARMANDO PADILLA-ALVAREZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(01-CR-599)
October 10, 2002
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Armando Padilla-Alvarez appeals the sentence imposed following
his guilty plea to one count of illegally re-entering the United
States in violation of 8 U.S.C. § 1326. He presents several
arguments on appeal, all of which stem from the district court’s
decision to depart upward from the guideline sentencing range.
*
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should not be published and is not precedent except under the limited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.
We have reviewed the record and the briefs submitted by the
parties and conclude that the district court did not commit clear
error in determining that Padilla’s criminal history category
underrepresented the seriousness of his past criminal conduct, and
we perceive no abuse of discretion in the district court’s decision
to depart upward on that basis.1 The district court adequately, if
implicitly, stated its reasons for rejecting intermediate offense
levels when it departed upward.2 A district court’s finding
“[t]hat a defendant’s criminal history category does not adequately
reflect the seriousness of a defendant’s past criminal conduct is
a factor not taken into account by the Guidelines and is a
permissible justification for upward departure.”3 Finally, under
the circumstances presented to the district court, the extent of
the upward departure was reasonable.4
AFFIRMED.
1
See United States v. Laury, 985 F.2d 1293, 1310 (5th Cir. 1993).
2
See United States v. Lambert, 984 F.2d 658, 663 (5th Cir. 1993) (en
banc).
3
Laury, 985 F.2d at 1310 (citations and internal quotation marks omitted).
4
See United States v. Hawkins, 87 F.3d 722, 728 (5th Cir. 1996).
2