Summary
affirming a departure based on number and nature or prior convictions
Summary of this case from United States v. ChavezOpinion
No. 07-40148, Summary Calendar.
December 18, 2007.
James Lee Turner, Assistant U.S. Attorney, U.S. Attorney's Office Southern District of Texas, Houston, TX, for Plaintiff-Appellee.
Marjorie A. Meyers, Federal Public Defender, Federal Public Defender's Office Southern District of Texas, Houston, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of Texas, USDC No. 7:06-CR-857-1.
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
Jesus Carrillo-Rodriguez appeals his conviction of being found in the United States after a previous deportation, pursuant to 8 U.S.C. § 1326. Carrillo-Rodriguez contends that the 16-level adjustment to his offense level for a previous conviction of a crime of violence was erroneous because the Florida statute under which he was convicted of burglary in 2004 extends to conduct beyond the generic definition of burglary of a dwelling because the operative definition of "dwelling" in Florida includes the curtilage of a building. He argues that the district court's error was not harmless for numerous reasons.
Carrillo-Rodriguez did not raise in the district court his argument about the Florida statute's inclusion of curtilage in its definition of a dwelling. Our review is for plain error. See United States v. Cabral-Castillo, 35 F.3d 182, 188-89 (5th Cir. 1994).
The district court erred by adjusting Carrillo-Rodriguez's offense level based on his Florida conviction. See United States v. Gomez-Guerm, 485 F.3d 301, 303-04 (5th Cir. 2007). However, the 16-level adjustment did not constitute reversible plain error, whether the district court's alternative reasoning for imposing a 70-month sentence constituted an upward departure or a non-guideline sentence.
The district court incorrectly considered Carrillo-Rodriguez's arrest record. See U.S.S.G. § 4A1.3(a)(3), p.s. However, Carrillo-Rodriguez had a total of 11 convictions that were not counted when calculating his criminal history score. The district court did not err by concluding that Carrillo-Rodriguez's convictions of unlawfully carrying a weapon and battery suggested a history of violence, and that his convictions of petty theft, burglary of a structure, grand theft, and criminal trespass suggested a lack of respect for other peoples' property. See § 4A1.3(a)(3), p.s., comment, (backg'd).
The number and nature of Carrillo-Rodriguez's uncounted convictions suggested that a substantial departure or a relatively high non-guideline sentence was advisable to promote respect for the law, provide just punishment, afford deterrence against future criminal conduct, and protect the public from Carrillo-Rodriguez. See 18 U.S.C. § 3553(a)(2). Because a departure was permissible pursuant to § 4A1.3(a)(3), p.s., the sentence was consistent with § 3553(b)(1), which allows departures when an aggravating circumstance has not been adequately taken into account, in kind or in degree, by the Sentencing Commission. Moreover, given Carrillo-Rodriguez's evident disregard for the law, a departure was justified on the facts of the case. See United States v. Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir.), cert. denied, ___ U.S. ___, 126 S.Ct. 2954, 165 L.Ed.2d 975 (2006).
Analyzed as a non-guideline sentence, the district court provided fact-specific, compelling reasons that are consistent with the sentencing factors of § 3553(a). The district court did not fail to account for any factor that should have received significant weight or, despite the consideration of Carrillo-Rodriguez's arrest record, give significant weight to an improper factor. Nor did the district court commit a clear error in judgment while balancing the sentencing factors. See United States v. Smith, 440 F.3d 704, 707-08 (5th Cir. 2006). The 70-month sentence was reasonable in light of Carrillo-Rodriguez's extensive history of serious criminal conduct. See id. at 705, 710.
Carrillo-Rodriguez also maintains the "felony" and "aggravated felony" provisions of 8 U.S.C. § 1326(b)(1) and (b)(2) are unconstitutional in the light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). This argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), which held 8 U.S.C. § 1326(b)(2) is a penalty provision and not a separate criminal offense. United States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), petition for cert. filed, (Aug. 28, 2007) (No. 07-6202).
AFFIRMED.