                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 02-4133
                                   ___________

United States of America,            *
                                     *
            Appellee,                *
                                     * Appeal from the United States
      v.                             * District Court for the
                                     * Northern District of Iowa.
Mario Gonzales-Ortega, also known    *
as Daniel Cano,                      *
                                     *
            Appellant.               *
                                ___________

                             Submitted: June 10, 2003

                                  Filed: October 10, 2003
                                   ___________

Before BOWMAN, BEAM, and BYE, Circuit Judges.
                          ___________

BOWMAN, Circuit Judge.

      Mario Gonzales-Ortega pleaded guilty to illegally reentering the United States.
See 8 U.S.C. § 1326(a) & (b)(2) (2000). The District Court1 determined that
Gonzales-Ortega’s criminal history level of VI did not adequately reflect the
defendant’s criminal history and the likelihood that he would commit future crimes



      1
      The Honorable Mark W. Bennett, United States District Judge for the
Northern District of Iowa.
and departed upwards by five offense levels and sentenced him to 150 months in
prison. Gonzales-Ortega appeals this departure and we affirm.

        The recently-enacted PROTECT Act requires that a district court “state[] with
specificity” in the “written order of judgment” its reasons for departing upwards or
downwards from the applicable sentencing guideline. See PROTECT Act, Pub. L.
No. 108-21, § 401(c), 117 Stat. 650, 669 (2003) (amending 18 U.S.C. § 3553(c));
United States v. Aguilar-Lopez, 329 F.3d 960, 962 (8th Cir. 2003). The Act also
requires that we apply a de novo standard of review when the sentence imposed is
outside the applicable guideline range and the departure has not been justified in a
written order or the departure is based on a factor that: “does not advance the
objectives set forth in section 3553(a)(2)”; “is not authorized under section 3553(b)”;
or is simply “not justified by the facts of the case.” See PROTECT Act, Pub. L. No.
108-21, § 401(d), 117 Stat. 650, 670 (2003) (amending 18 U.S.C. § 3742(e)).
Although Gonzales-Ortega was sentenced before the PROTECT Act became law, the
Act, because it is procedural in nature, does apply to his pending appeal. United
States v. Hutman, 339 F.3d 773, 775 (8th Cir. 2003).

       In this case, the District Court determined an upward departure was warranted
under United States Sentencing Guideline (U.S.S.G.) § 4A1.3 (2002) because
Gonzales-Ortega’s “criminal history category significantly underrepresents the
seriousness of the Defendant’s criminal conduct or the likelihood that the Defendant
will commit further crimes.” Transcript of Sentencing Hearing at 29. Gonzales-
Ortega’s base offense level was twenty-one and his total criminal history score of
thirty-one put him in category VI. Thus, his initial sentencing range was 77–96
months. For a defendant to reach category VI, however, only a criminal-history score
of thirteen is needed. Thus, Gonzales-Ortega was eighteen criminal-history points
above the minimum required to place him in category VI. When it structured the
departure, the District Court departed upwards one offense level for every three such
criminal-history points. This resulted in an increase in Gonzales-Ortega's base-

                                         -2-
offense level of only five levels (15÷3=5) rather than six levels (18÷3=6), because
the District Court reasoned that if there were criminal history categories above
category VI, category VI would include points thirteen through fifteen, the next
category would include points sixteen through eighteen, and so on. The District
Court did not increase Gonzales-Ortega's sentence by a sixth offense level to reflect
the sixteenth criminal-history point that fell beyond the five-level increase in
question. The departure placed Gonzales-Ortega in offense-level 26 and the District
Court sentenced him at the highest end of the 120–150 month range. Gonzales-
Ortega now appeals this sentence.

        The Sentencing Guidelines instruct that where a defendant’s “criminal history
category does not adequately reflect the seriousness of the defendant’s past criminal
conduct or the likelihood that the defendant will commit other crimes, the [district]
court may consider imposing a sentence departing from the otherwise applicable
guideline range.” U.S.S.G. § 4A1.3. Normally, § 4A1.3 explains, such a departure
is structured by moving horizontally within the Guidelines, from criminal history
category III to IV, for example. When the defendant is within category VI, however,
this is not possible and the Guidelines instruct that in these cases "the court should
structure the departure by moving incrementally down the sentencing table to the next
higher offense level in Criminal History Category VI until it finds a guideline range
appropriate to the case.” Id. This is all the guidance that the Guidelines provide for
structuring such a departure. The Guidelines do note that the nature of the prior
offenses and not the sheer number of prior offenses “is often more indicative of the
seriousness of the defendant’s criminal record.” Id. Consequently, a district court
should consider the nature and extent of a defendant’s criminal history when
contemplating and structuring an upward departure from category VI.

      Our review of Gonzales-Ortega’s criminal history convinces us that the District
Court did not err when it increased his offense level by five levels and sentenced him
to 150 months in prison. Gonzales-Ortega’s criminal history is extensive to say the

                                         -3-
least. By our count, Gonzales-Ortega has more than thirty prior adult convictions of
record, many of which were not included in his criminal history score. It is true that
a number of these offenses were for “petty” crimes or for intoxication offenses, but
these petty offenses do not properly characterize Gonzales-Ortega’s criminal history.
Rather, his is a criminal history replete with drug crimes, illegal entries and
deportations, and a more recent turn towards violence and other crimes that present
an obvious and growing danger towards society. Gonzales-Ortega’s habit of being
deported, returning to the United States, and being deported again (usually after
committing another crime) is particularly troublesome. He is not an illegal alien who
has spent years or decades within the United States as a productive member of
society. Instead, Gonzales-Ortega has apparently repeatedly returned to the United
States in order to commit crimes. Further, Gonzales-Ortega is not an individual for
whom incarceration appears to have had any deterrent or reforming effect for he has
had his probation revoked on at least ten occasions and has spent a large portion of
his adult life in prison. Accordingly, we can discern nothing unreasonable in the
extent of the District Court’s upward departure, which, after all, leaves Gonzalez-
Ortega's sentence well below the statutory maximum of twenty years for the offense
of which he stands convicted in this case. See 8 U.S.C. § 1326(b)(2).

      Gonzales-Ortega’s related claim is that the District Court’s method of
computing the departure was not authorized by the Guidelines, which, he points out,
do not feature a “point system for departures.” Brief of Appellant at 5. But this
argument proves too much for there is in fact little guidance at all within the
Guidelines on the method for computing an upward departure for a defendant with
a Criminal History Category of VI. Here, the defendant got as much mercy as he
reasonably could expect where the sum total of guidance given to the District Court
regarding methodology was that it should “structure the departure by moving
incrementally down the sentencing table to the next higher offense level in Criminal
History Category VI until it finds a guideline range appropriate to the case.” U.S.S.G.
§ 4A1.3. Gonzales-Ortega faced a District Judge who effectively cabined his

                                         -4-
discretion and imposed a “conservative” sentence that was not “unduly punitive.”
See Transcript of Sentencing Hearing at 33. The District Court, in its discretion,
chose to impose on its upward departure the same structure that the Guidelines
impose on sentences (i.e., for categories III–VI, one criminal history category per
three criminal history points). We see no error in the District Court’s method of
determining the extent of the upward departure. So long as district courts do not
impose an upward departure that is unreasonable in its extent, we think they should
be free to use whatever method they choose in determining the extent of the
departure, provided the method chosen is not inconsistent with the Guidelines. We
see no such inconsistency here.

       We cannot agree with Gonzales-Ortega's claim that this and other circuits have
already rejected "mechanistic" approaches to sentencing. Rather, in the cases cited,
see, e.g., United States v. Leaf, 306 F.3d 529, 533 (8th Cir. 2003), we rejected the
notion that district courts do not have discretion and "that district courts must take a
mechanistic approach to departures based on criminal history." In the present case,
the District Court was aware of its broad discretion in fashioning an upward departure
and the court exercised that discretion to reach a result that was both fair and not
inconsistent with the Guidelines. And, while we note that the Tenth Circuit's opinion
in United States v. Walker, 284 F.3d 1169, 1173 (10th Cir. 2002), questioned the
reliance on the sheer number of a defendant's past convictions when structuring a
departure from criminal history category VI (because such reliance "could create a
de facto criminal history category higher than category VI"), Walker does not guide
this case. Although it is self-evident that the Guidelines do not feature numerically
higher criminal history categories, they also explicitly provide for upward departures
for defendants, such as Gonzales-Ortega, whose criminal exploits have literally put
them off the charts. In such cases, the Guidelines provide limited guidance for
sentencing recidivist offenders and merely require that a District Court keep moving
“down the sentencing table . . . until it finds a guideline range appropriate to the



                                          -5-
case.”2 U.S.S.G. § 4A1.3. Moreover, the Guidelines, if they are anything, are
mechanistic insofar as they compute sentences based on offense levels (plus or minus
enhancements and reductions) and the defendant’s criminal history score. The
principal virtue of the Guidelines lies in this regularization of the sentencing process.
Though the approach taken by the District Court is not the only method for
sentencing off-the-chart offenders such as Gonzales-Ortega, we can perceive nothing
unreasonable in the District Court’s method of exercising its discretion in determining
the extent of the upward departure at issue in this case.

      For the reasons stated, the judgment of the District Court is affirmed.
                      ______________________________




      2
        This lack of guidance is surely not surprising for whatever wisdom the
Guidelines contain as a result of basing sentences on a combination of offense
conduct and criminal history has surely run its course in the case of individuals such
as Gonzales-Ortega whose criminal histories are so extensive and for whom the
likelihood of committing further crimes is so great that virtually any lengthy sentence
within the statutory maximum for the offense of conviction could be deemed
appropriate.

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