     Case: 11-40528     Document: 00511780596         Page: 1     Date Filed: 03/07/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           March 7, 2012
                                     No. 11-40528
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

HERNAN GUERRA, JR.,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:10-CR-847-9


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        Hernan Guerra, Jr., pleaded guilty to a single count of conspiracy to
possess with intent to distribute more than 1,000 kilograms of marijuana . The
district court departed upwardly from the applicable guidelines sentencing range
and sentenced Guerra to 120 months of imprisonment and a four-year term of
supervised release. Guerra timely appealed.
        Guerra argues that the district court inappropriately departed upwardly
under U.S.S.G. § 5K2.0. He asserts that the district court wrongly concluded

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                   No. 11-40528

that an upward departure was justified on the basis that he flagrantly abused
the public trust in his capacity as the police chief in Sullivan City, Texas, by
using his law enforcement position to facilitate and encourage drug trafficking.
Guerra argues that he was assessed a two-level upward adjustment in his base
offense level for abuse of trust under U.S.S.G. § 3B1.3, and, therefore, his offense
level accounted sufficiently for his abuse of trust.
      Reasonableness review, in the context of an upward departure, requires
an appellate court to evaluate for abuse of discretion both the district court’s
decision to depart upwardly and the extent of that departure. United States v.
Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir. 2006). An upward departure is not
an abuse of discretion if the court’s reasons for departing advance the objectives
set forth in 18 U.S.C. § 3553(a), and are justified by the facts of the case. United
States v. Rajwani, 476 F.3d 243, 250-51 & n.17 (5th Cir.), modified on other
grounds, 479 F.3d 904 (5th Cir. 2007).
      Section 5K2.0 of the Sentencing Guidelines provides that a departure may
be authorized if the court finds that there exists an aggravating circumstance “of
a kind, or to a degree, not adequately taken into consideration by the Sentencing
Commission in formulating the guidelines that, in order to advance the
objectives set forth in 18 U.S.C. § 3553(a)(2), should result in a sentence different
from that described.” § 5K2.0(a)(1)(A). An upward departure under § 5K2.0 may
be warranted “in an exceptional case, even though the circumstance that forms
the basis for the departure is taken into consideration in determining the
guideline range, if the court determines that such circumstance is present in the
offense to a degree substantially in excess of . . . that which ordinarily is involved
in that kind of offense.” § 5K2.0(a)(3), p.s.
      In the instant case, the district court found that, while Guerra received an
adjustment for abuse of trust pursuant to § 3B1.3, the case involved exceptional
circumstances that justified the imposition of an upward departure. The district
court concluded that Guerra’s abdication of his law enforcement responsibilities

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                                  No. 11-40528

and significant alignment with drug traffickers was an egregious and flagrant
abuse of the public trust for which the Guidelines did not properly account. The
court noted that Guerra’s abuse of the public trust was unusually systematic and
pervasive and would cause a community to suffer a significant loss in confidence
in its government and law enforcement, particularly in light of Guerra’s role as
the “chief law enforcement officer” of the city.
      The district court’s reasons for imposing an upward departure pursuant
to § 5K2.0 are not discouraged by the Guidelines and are supported by the facts
of the case. See § 5K2.0(a)(1), (a)(3); see generally United States v. Wade, 931
F.2d 300, 307 (5th Cir. 1991) (indicating that abuse of law enforcement position
is valid reason to depart upwardly). The court’s stated reasons for the departure
also show that the court’s sentencing decision was grounded in § 3553(a) and
advanced the sentencing objectives of that statute. See § 3553(a)(1)-(2). Thus,
the district court did not abuse its discretion with respect to its decision to
depart upwardly or its reasons for that decision. See Zuniga-Peralta, 442 F.3d
at 347.
      Guerra also argues that his sentence is unreasonable. He asserts that a
within-guidelines sentence would have been sufficient in light of his particular
circumstances (e.g., he accepted responsibility for his offense, resigned from his
career in law enforcement, had no prior criminal history, and qualified for safety
valve relief pursuant to U.S.S.G. § 5C1.2). Guerra contends that the imposition
of an upward departure rendered his sentence excessive.
      In considering the reasonableness of the sentence imposed, this court
takes into account the totality of the circumstances, and may consider the extent
of the departure. Gall v. United States, 552 U.S. 38, 51 (2007). “A sentence is
unreasonable if it (1) does not account for a factor that should have received
significant weight, (2) gives significant weight to an irrelevant or improper
factor, or (3) represents a clear error of judgment in balancing the sentencing
factors.” United States v. Peltier, 505 F.3d 389, 392 (5th Cir. 2007) (internal

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quotation marks and citation omitted). Even assuming arguendo that this court
might reasonably conclude1 that a lower sentence was appropriate, such a
conclusion is insufficient to justify reversal of the district court. Gall, 552 U.S.
at 51.
      The record supports that the district court, which was in a superior position
to assess sentencing factors, implicitly rejected Guerra’s sentencing arguments
and determined that an above-guidelines sentence was justified in spite of those
arguments. Guerra’s disagreement with the district court’s determination does
not establish that the district court wrongly assessed the sentencing factors. See
id. Moreover, as detailed above, the district court gave adequate reasons for its
decision to impose an above-guidelines sentence; the district court concluded that
a departure was justified given Guerra’s egregious behavior in remorselessly
using his position as police chief to facilitate and encourage drug trafficking, and
the decision to depart advanced the sentencing factors set forth in § 3553(a).
      Accordingly, under the facts of this case, and given the district court’s wide
discretion in fashioning a sentence, the record supports that the district court’s
decision to depart upwardly was reasonable. See Rajwani, 476 F.3d at 250. The
extent of the departure, which was 12 months above the top of Guerra’s advisory
guidelines range of 87 to 108 months and was less than the statutory maximum
sentence of life imprisonment, was a reasonable exercise of the court’s sentencing
discretion. See Gall, 552 U.S. at 51; § 841(b)(1)(A).
      AFFIRMED.




         1
             We reach no such conclusion here.

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