Opinion
No. 09-10295 Summary Calendar.
January 15, 2010.
Nancy E. Larson, Assistant U.S. Attorney, U.S. Attorney's Office, Fort Worth, TX, for Plaintiff-Appellee.
Jerry V. Beard, Assistant Federal Public Defender, Federal Public Defender's Office, William Ernest Hermesmeyer, Federal Public Defender's Office, Fort Worth, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Northern District of Texas, USDC No. 4:08-CR-173-1.
Before KING, STEWART, and HAYNES, Circuit Judges.
Jesus Resendiz-Martinez (Resendiz) appeals the 48 month sentence imposed following his guilty plea conviction for illegal reentry following deportation, in violation of 8 U.S.C. § 1326(a) and (b)(1)(2). Resendiz challenges the district court's upwardly departing from criminal history category VI pursuant to U.S.S.G. § 4A1.3(a), p.s., arguing that the decision to depart was not justified by the facts in his case and that the court failed to follow the incremental approach in determining the extent of departure.
We need not resolve the parties' dispute over the standard of review governing Resendiz's first issue because under either standard, Resendiz's argument fails. The district court found that the criminal history substantially underrepresented Resendiz's serious criminal history and the likelihood that he will commit other crimes. Here and below, Resendiz challenged only the first part of that finding. Under § 4A1.3, a district court may upwardly depart on either basis. Moreover, the district court's reasons for departure advanced the objectives of sentencing set forth in 18 U.S.C. § 3553(a)(2) and are justified by the facts of this case. See United States v. Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir. 2006).
Resendiz's arguments below did not preserve his argument that the district court erred by failing to following the incremental approach required by § 4A1.3(a)(4)(B). This is the type of error that, if proper objection had been made, the district court could have corrected. See Puckett v. United States, ___ U.S. ___, ___, 129 S.Ct. 1423, 1428, 173 L.Ed.2d 266 (2009); United States v. Ocana, 204 F.3d 585, 589 (5th Cir. 2000). The error here is the district court's failure to "show its work" in arriving at the 48 month sentence. Resendiz does not argue, and there is nothing in the record to show, that the district court would have, or could not have, imposed a lesser sentence if it had employed the incremental approach. Thus, Resendiz's substantial rights were not affected. See Puckett, 129 S.Ct. at 1431; United States v. Jones, 489 F.3d 679, 682 (5th Cir. 2007).
AFFIRMED.