     Case: 09-10688     Document: 00511237695          Page: 1    Date Filed: 09/20/2010




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

                                                 FILED
                                                                        September 20, 2010
                                     No. 09-10688
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

ELI PALACIOS PENA, JR.,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 4:09-CR-19-1


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Eli Palacios Pena (Palacios) appeals the 60-month
statutory maximum sentence he received after he pleaded guilty to possession
of stolen mail, in violation of 18 U.S.C. § 1708. The district court stated its
sentence was both an upward departure from the guidelines range of
imprisonment based on U.S.S.G. §§ 2B1.1, comment. (n.19(a)(4)), 4A1.3(a)(1),
and 5K2.0(a)(3), and a variance outside the guideline range.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-10688    Document: 00511237695 Page: 2         Date Filed: 09/20/2010
                                 No. 09-10688

      Palacios argues that, even if some upward departure from the calculated
guidelines range was warranted, the sentence was ultimately unreasonable
because of the extent of the departure. Reasonableness review, in the context
of a guidelines departure, requires us to evaluate both “the district court’s
decision to depart upwardly and the extent of that departure for abuse of
discretion.” United States v. Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir. 2006)
(internal quotation marks and citation omitted). “An upward departure by a
district court is not an abuse of discretion if the court’s reasons for departing
1) advance the objectives set forth in 18 U.S.C. § 3553(a)(2) and 2) are justified
by the facts of the case.” Id. (internal quotation marks and citation omitted).
      The district court’s decision to depart upwardly under § 4A1.3 was not an
abuse of discretion. Palacios’s criminal record shows that he is a repeat offender.
Further, the district court’s stated reason for the departure-concern with
Palacios’s recidivism-advances the objectives set forth in        § 3553(a).    See
Zuniga-Peralta, 442 F.3d at 347; § 3553(a)(2). Likewise, the facts of the case
justified the departure. See Zuniga-Peralta, 442 F.3d at 347. Palacios did not
receive as many criminal history points as he could have. He received no points
for the burglary that he committed when he was a juvenile, but he concedes that
he would have received three points for that had it been counted. He received
a single point for theft of stolen property and for interference with public duties,
each of which could have resulted in two points had he been sentenced to the
maximum sentence of one year in prison.         See T EX. P ENAL C ODE §§ 12:21,
31:03(e)(3), 38:15(b); U.S.S.G. § 4A1.1(b). The Presentence Report evinced a
substantial risk that Palacios would continue to commit crimes insofar as he was
already facing theft charges for two other incidents. See § 4A1.3(a)(2)(D).
Palacios had prior similar adult criminal conduct that did not result in
convictions. See § 4A1.3(a)(2)(E). Finally, Palacios had committed four offenses
in just over two years, when he was only between 18 and 21 years old. See



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                                  No. 09-10688

§ 4A1.3, comment. (backg’d). Thus, as Palacios concedes, an upward departure
to a Category VI was warranted.
      Nor did the district court abuse its discretion when it departed upwardly
another seven levels because of the substantial risk of loss involved and the
repeated victimization, given that Palacios stole mail on seven occasions, thereby
increasing the risk of loss to his victims.     See §§ 2B1.1, comment. (n.19);
5K2.0(a)(3). That actual loss was not determined in this case does not preclude
a finding that there was a substantial risk of loss. See United States v. John,
597 F.3d 263, 278-81 (5th Cir. 2010) (upholding increase in defendant’s offense
level based on intended loss). Further, the district court’s reasons for departing
under these Guidelines advanced the § 3553(a)(2) factors and the departure was
justified by the facts of the case.     See Zuniga-Peralta, 442 F.3d at 347;
§ 3553(a)(2).
      Insofar as the district court did not abuse its discretion in deciding to
depart, the issue becomes whether the district court abused its discretion in the
extent of the departure. See United States v. Rajwani, 476 F.3d 243, 250 (5th
Cir. 2007).     “A district court abuses its discretion where the degree of the
departure or the sentence as a whole is unreasonable.” Id. (citation omitted).
      Palacios’s reliance on Rajwani is misplaced because his sentence “as a
whole” is distinguishable. Rajwani, 476 F.3d at 250. The defendant’s criminal
history was not at issue in Rajwani.        Moreover, as set forth above, the
aggravating circumstances in Rajwani were already accounted for in the
Guidelines that governed the defendant’s offense. The Guidelines applicable to
Palacios’s offense did not provide an enhancement for the repetitive nature of
Palacios’s conduct--seven thefts in one month. Although the Guidelines did
provide an enhancement based on the number of victims, there was no provision
for the increased risk of financial loss created by repeated thefts. Given the
aggravating circumstances of Palacios’s offense, the degree of the departure and
the sentence as a whole is reasonable. See Rajwani, 476 F.3d at 250; United

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                               No. 09-10688

States v. Herrera-Garduno, 519 F.3d 526, 531-32 (5th Cir. 2008) (affirming
upward departure from guidelines range of 21 to 27 months to 60 months when
underlying circumstances rendered sentence reasonable).
     AFFIRMED.




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