     Case: 09-10865     Document: 00511139541         Page: 1     Date Filed: 06/11/2010




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

                                                 FILED
                                                                           June 11, 2010
                                     No. 09-10865
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

v.

FIDENCIO MALDONADO-CHIMAL,

                                                  Defendant-Appellant.


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:09-CR-46-1


Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
        Fidencio Maldonado-Chimal appeals the sentence he received for illegal
reentry into the United States after deportation, which departed upward from
the 21-to-27 month guidelines range to 60 months of imprisonment. Maldonado-
Chimal contends that the court erred by failing to evaluate why it rejected each
intermediate offense level as required by United States Sentencing Guidelines
§ 4A1.3, and also by using the wrong legal standard to determine the
appropriate sentence.

       *
        Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 09-10865

      We first address Maldonado-Chimal’s argument that the district court
erred by failing to consider each intermediate step as it moved up the offense
levels within Category VI as required by § 4A1.3. Maldonado-Chimal objected
to the upward departure, but he did not specifically object that the district court
failed to follow the incremental process required by § 4A1.3. Therefore, review
is limited to plain error. See Puckett v. United States, 129 S. Ct. 1423, 1429
(2009). To show plain error, the defendant must show a forfeited error that is
clear or obvious and that affects his substantial rights. See id. If the defendant
makes such a showing, this court has the discretion to correct the error but only
if it “seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings.” Id. (citation and internal quotation marks omitted).
      It is well established that when a district court departs from the guideline
range in sentencing a defendant, it must “evaluate each successive criminal
history category above or below the guideline range for a defendant as it
determines the proper extent of departure.” United States v. Lambert, 984 F.2d
658, 662 (5th Cir. 1993) (en banc). However, this requirement does not mandate
that a court “go through a ritualistic exercise in which it mechanically discusses
each criminal history category that it rejects en route to the category it selects.”
United States v. Zuniga-Peralta, 442 F.3d 345, 348 n. 2 (5th Cir. 2006). Rather,
“the district court’s reasons for rejecting intermediate categories [ordinarily] will
be clearly implicit, if not explicit in the court’s explanation for its departure from
the category calculated under the guidelines and its explanation for the category
it has chosen as appropriate.” Lambert, 948 F.2d at 663.
      We acknowledge that the district court here failed to specify the criminal
history category it applied.     The court explained that Maldonado-Chimal’s
guideline imprisonment range was 21-to-27 months (criminal history category
V, total offense level 10), and that such a sentence was insufficient to adequately




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                                 No. 09-10865

address his criminal history. The court then discussed the necessity of an
upward departure without any reference to criminal history level VI.
      We cannot say on this record that any failure the of the district court to
specifically articulate why he rejected intermediate categories in favor of a
higher sentence constituted plain error. See Puckett, 129 S. Ct. at 1429. The
record reflects that the district court adopted the Presentence Report and found
that the departure was necessary because Maldonado-Chimal’s criminal history
category under-represented the seriousness of his criminal history and the
likelihood that he would commit other crimes. It also found that the departure
was necessary to address the 18 U.S.C. § 3553(a) factors, including his history
and characteristics, his risk of recidivism, and the need for deterrence and to
promote respect for the law. These determinations are similar to those which
have sufficed in the past to show that the district court “throughly considered
the appropriate guidelines in arriving at its ultimate sentence,” as the court’s
“explanation for its sentence also explains why it rejected a lesser departure.”
Lambert, 984 F.2d at 663-64 (finding that court considered the appropriate
guidelines where the district court “specifically concluded that the guidelines did
not reflect the seriousness of Lambert’s criminal history taken as a whole,” and
the record clearly demonstrated that raising the criminal history category by a
single level would have increased his sentence by only three months—an
increase which “would have been inadequate.”). Accordingly, we are unable to
conclude that the court committed plain error.
      Maldonado-Chimal also argues that the district court applied the wrong
legal standard when it determined his sentence. Specifically, he alleges that the
district court erroneously adopted the reasonableness standard appropriate for
appellate review rather than imposing a sentence that was sufficient but not
greater than necessary to meet the objectives of § 3553(a). At sentencing,
Maldonado-Chimal objected that the sentence was unreasonable, but he did not



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                                    No. 09-10865

argue that the court had used the wrong standard in determining his sentence.
Therefore, review is limited to plain error. See Puckett, 129 S. Ct. at 1429.
       Maldonado-Chimal bases his allegation of error on the district court’s
mention that the sentence was “reasonable,” but the record conclusively shows
that the district court did not base his sentence on the appellate standard of
reasonableness. During the sentencing, the district court stated that “[a]s I
indicated, I believe a sentence of that kind is necessary to adequately and
appropriately address the factors the Court should consider in determining a
sentence to impose under Section 3583(a)1 [sic] of Title 18. And I’ve concluded
that it is a reasonable sentence in this case.” This statement confirms that the
court based the sentence on the § 3553(a) factors and mentioned the
reasonableness of the sentence only as support for its ultimate determination.
Further, the record demonstrates that the district court considered and based
the sentence on the § 3553(a) factors, including Maldonado-Chimal’s history and
characteristics, his risk of recidivism, and the need for deterrence and to
promote respect for the law. As such, we find no plain error on the part of the
district court. See id. at 1429.
       AFFIRMED.




       1
       Although the district court erroneously referred to § 3553(a) as § 3583(a), it is clear
from the context of the opinion that the court’s intended reference was § 3553(a).

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