United States v. Mejia-Suero , 205 F. App'x 191 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS September 18, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-30016
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAMON MEJIA-SUERO, also known as Rafael Carlos
Mercado-Pacheco, also known as Felix Rivers,
also known as Alexander G. Claudio, also known as
Jose Sanchez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 01-CR-111-ALL-D
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Before GARWOOD, E. GARZA and BENAVIDES, Circuit Judges.
PER CURIAM:*
Ramon Mejia-Suero (“Mejia”) appeals the district court’s
upward departure based upon the inadequacy of his criminal
history category under U.S.S.G. § 4A1.3. Mejia argues that a
sentencing court must consider only reliable information in its
departure decision and should not consider prior arrests alone,
*
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that this opinion should not be published and is not precedent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. 03-30016
-2-
that the district court failed to give adequate reasons to
support a departure, and that the district court overstated his
criminal history.
The district court considered, not just Mejia’s arrest
record, but reliable information contained in the PSR. See
United States v. Taylor, 277 F.3d 721, 724 (5th Cir. 2001). The
district court was permitted to consider the numerous charges
pending against Mejia. See § 4A1.3(d). The district court also
properly relied upon the convictions for serious dissimilar
conduct which were not counted because they were outside the
applicable time period. See §§ 4A1.3; 4A1.2, comment. (n.8).
The district court could also consider dissimilar criminal
conduct not resulting in a conviction. Section 4A1.3(e) permits
consideration of “prior similar adult criminal conduct not
resulting in conviction.” Three other circuits, noting that
§ 4A1.3’s factors are not exhaustive, have held that a district
court may also rely, in certain instances, on the conduct
underlying dissimilar unadjudicated offenses. See United States
v. Cox, 299 F.3d 143, 146-47 (2d Cir. 2002); United States v.
Brewster, 127 F.3d 22, 27 (1st Cir. 1997); United States v.
Schweihs, 971 F.2d 1302, 1319 (7th Cir. 1992). The district
court did not abuse its discretion by considering, to the extent
that it did, the unadjudicated conduct outlined in the PSR.
Finally, the district court stated the specific reasons for
the departure, complied with our instruction to consider each
No. 03-30016
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criminal history category above the guideline range as it
determines the extent of the departure, and departed to a
reasonable extent. See United States v. Cade, 279 F.3d 265, 270
(5th Cir. 2002); United States v. Lambert, 984 F.2d 658, 662-63
(5th Cir. 1993) (en banc).
AFFIRMED.