     Case: 11-41023     Document: 00511833041         Page: 1     Date Filed: 04/24/2012




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

                                                                            FILED
                                                                           April 24, 2012
                                     No. 11-41023
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee
v.

DOEL ORTIZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:11-CR-504-1


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        Doel Ortiz appeals the 30-month above guidelines sentence imposed for his
guilty plea conviction for possession with intent to distribute 4.535 kilograms of
marijuana, arguing that the district court erred in finding that he had a
continued criminal history from the 1970's to the present and that the district
court improperly relied on his prior arrest record, dismissed charges, and other
conduct that may not be considered under U.S.S.G. § 4A1.3(a)(2). Because he
did not raise these arguments in the district court, review is limited to plain


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-41023

error. See United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir.
2009). He also argues that the sentence is substantively unreasonable. Because
he objected to the reasonableness of the sentence, he preserved this issue for
review. See United States v. Duhon, 541 F.3d 391, 399 (5th Cir. 2008).
      Contrary to Ortiz’s contention, the district court did not base his sentence
on his arrest record or dismissed charges. The district court stated that it was
considering imposing a 30-month above guidelines sentence, based primarily on
Ortiz’s six unscored prior convictions, including two violent attempted rape
convictions.   The district court properly considered his six unscored prior
convictions under § 4A1.3(a)(2)(A). In response to Ortiz’s argument that he had
no convictions from 1973 to 1990, the district court noted that he had contact
with law enforcement during this period as evidenced by his arrests, dismissed
charges, and his admitted cocaine use; the district court expressly stated that it
was not counting the other arrests that did not result in convictions. In the
statement of reasons, the district court stated that Ortiz’s criminal history was
underrepresented and that category VI more adequately represented his
criminal history; it did not state that it considered Ortiz’s arrest record or
dismissed charges. The district court’s discussion of Ortiz’s underrepresented
criminal history and other permissible factors indicates that it did not
improperly base the sentence on Ortiz’s arrest record or dismissed charges. See
United States v. Williams, 620 F.3d 483, 495 (5th Cir. 2010), cert. denied, 131
S. Ct. 1534 (2011).
      Ortiz has not shown that the district court plainly erred in finding that
Ortiz had a continuing criminal history from the 1970's to the present. The
district court’s finding was plausible in view of the record as a whole. Ortiz had
six unscored convictions from 1970 to 1991, including two violent attempted rape
convictions. During some of the seeming gap between convictions, he was
incarcerated (from 1973 to 1983). He also admitted to cocaine use throughout
a more than twenty-year period beginning in 1989. Ortiz also admitted that he

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                                  No. 11-41023

had recently received two or three packages containing controlled substances on
behalf of Dominican nationals; one of those packages was lost, and he had agreed
to transport the marijuana in this case to earn $1500 to repay them for the lost
package.
      To the extent Ortiz argues that the district court erred in not calculating
an upward departure under the Guidelines before imposing a nonguidelines
sentence, his argument lacks merit. This court has held that a district court is
not required to calculate a departure under § 4A1.3 before imposing a
nonguidelines sentence. United States v. Gutierrez, 635 F.3d 148, 152 (5th Cir.
2011).
      The sentence imposed by the district court was not substantively
unreasonable. Because his procedural argument fails, his challenge to the
substantive reasonableness on the essentially the same grounds also fails. See
United States v. Rhine, 637 F.3d 525, 529-30 (5th Cir. 2011), cert. denied, 132
S. Ct. 1001 (2012). The district court considered his arguments, his history and
characteristics, his age, his arthritis in his back, his cocaine addiction, and the
need to deter future criminal conduct and to protect the public.           Ortiz’s
disagreement with the weight the court gave to the various sentencing factors
does not show that the court erred. See United States v. Hernandez, 633 F.3d
370, 375-76 (5th Cir.), cert. denied, 131 S. Ct. 3306 (2011).
      AFFIRMED.




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