     Case: 10-10036 Document: 00511287856 Page: 1 Date Filed: 11/08/2010




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

                                                 FILED
                                                                          November 8, 2010
                                     No. 10-10036
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

FROILAN JESUS RODRIGUEZ-VIGIL, also known as Jesse Rodriguez, also
known as Jesus Rodriguez-Velasquez,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 4:09-CR-97-1


Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
       Froilan Jesus Rodriguez-Vigil appeals his sentence following his conviction
for illegal reentry into the United States after deportation. Rodriguez-Vigil was
sentenced to 120 months of imprisonment and three years of supervised release.
His sentence constituted an upward departure, pursuant to U.S.S.G. § 4A1.3,
from his guidelines range of 70 to 87 months of imprisonment.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-10036 Document: 00511287856 Page: 2 Date Filed: 11/08/2010

                                   No. 10-10036

       After United States v. Booker, 543 U.S. 220 (2005), sentences are reviewed
for “reasonableness.” Gall v. United States, 552 U.S. 38, 46 (2007). This court
first ensures that the district court did not commit any significant procedural
error, such as failing to properly calculate the guidelines range or inadequately
explaining a deviation from the guidelines range. Id. at 51. If the sentencing
decision is procedurally sound, this court then considers “the substantive
reasonableness of the sentence imposed under an abuse-of-discretion standard.”
Id.
       Rodriguez-Vigil contends that the district court erred in imposing his
sentence because it failed to follow the requisite method of calculating the extent
of the departure. Under § 4A1.3, a district court may depart upward “[i]f reliable
information    indicates   that   the   defendant’s   criminal   history   category
substantially under-represents the seriousness of the defendant’s criminal
history or the likelihood that the defendant will commit other crimes.”
§ 4A1.3(a)(1); accord United States v. Mejia-Huerta, 480 F.3d 713, 723 (5th Cir.
2007). When departing under § 4A1.3, the district court must follow the method
set forth under § 4A1.3(a)(4)(A) and (B) for calculating the extent of the
departure. Mejia-Huerta, 480 F.3d at 723. Those provisions provide that an
upward departure under § 4A1.3 is made by adjusting the defendant’s criminal
history category, except that the defendant’s offense level is adjusted where the
district court seeks to depart upward from a criminal history category of VI.
§ 4A1.3(a)(4)(A), (B). The district court should consider, and state for the record
that it has considered, each intermediate criminal history category before
arriving at the sentence it finds appropriate. United States v. Lambert, 984 F.2d
658, 662 (5th Cir. 1993) (en banc). However, the district court generally is not
required to ritualistically discuss each criminal history category it rejects, and
its reasons for rejecting the intermediate categories may be given implicitly in
its explanation for the departure. Id. at 663.



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                                  No. 10-10036

      Because Rodriguez-Vigil did not alert the district court to his argument
that it failed to comply with the methodology under § 4A1.3(a)(4), the argument
is reviewed for plain error only. See Puckett v. United States, 129 S. Ct. 1423,
1429 (2009). To show plain error, the appellant must show a forfeited error that
is clear or obvious and that affects his substantial rights. Id. If the appellant
makes such a showing, this court has the discretion to correct the error but only
if it seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id. To show that a sentencing error affected his substantial rights,
an appellant must demonstrate a reasonable probability that he would have
received a lesser sentence but for the error. United States v. Davis, 602 F.3d
643, 647 (5th Cir. 2010).
      While Rodriguez-Vigil is correct that the district court did not explain how
it arrived at a 120-month imprisonment term based on the methodology required
for an upward departure under § 4A1.3, see Lambert, 984 F.2d at 662-63, he
cannot show a reasonable probability that he would have received a lesser
sentence but for the district court’s lack of explanation. First, § 4A1.3(a)(4)
permitted the district to reach a guidelines range encompassing a 120-month
imprisonment term because it permitted the district court to increase Rodriguez-
Vigil’s criminal history category to VI and then increase his total offense level
to 24, 25, or 26. See § 4A1.3(a)(4)(A), (B); U.S.S.G. Ch. 5, Pt. A; United States v.
Ashburn, 38 F.3d 803, 809-10 (5th Cir. 1994) (en banc). Second, there is no
indication that the district court would have been inclined to impose an
imprisonment term of less than 120 months if it had explicitly followed the
methodology required under § 4A1.3(a)(4). To the contrary, the district court’s
statements in imposing the sentence indicated that it thought 120 months “may
be a little low” to constitute an appropriate sentence based on § 4A1.3 and the
factors under 18 U.S.C. § 3553(a). Rodriguez-Vigil has not satisfied his burden
of showing that his substantial rights were affected by the district court’s error



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concerning the methodology required under § 4A1.3(a)(4). See Davis, 602 F.3d
at 647.
      Rodriguez-Vigil also challenges the upward departure on the ground that
the district court erroneously believed that each of his four past convictions
constituted a “crime of violence” as that term is used in the Guidelines. At issue
is the district court’s statement, made as it provided reasons for its upward
departure, that Rodriguez-Vigil had “12 criminal history points which were
based on his four prior convictions that are considered crimes of violence.” He
does not dispute that his convictions for aggravated sexual assault of a child and
indecency with a child constituted crimes of violence under the Guidelines but
contends that his two Texas convictions for burglary of a habitation did not
qualify as crimes of violence under the categorical approach set forth in Taylor
v. United States, 495 U.S. 575, 600-02 (1990). Because Rodriguez-Vigil did not
alert the district court to this specific legal argument, plain error review applies
to this issue. See Hernandez-Martinez, 485 F.3d at 272-73.
      Rodriguez-Vigil has not shown that his substantial rights were affected by
any error by the district court in characterizing his burglary convictions as
crimes of violence under the Guidelines. See Davis, 602 F.3d at 647. First,
whether his burglary convictions were crimes of violence under the Guidelines
was not a necessary determination for an upward departure under § 4A1.3. See
§ 4A1.3(a). Second, the question whether his burglary convictions fell within the
“generic, contemporary” meaning of the offense of “burglary of a dwelling,” so as
to constitute a crime of violence under the Guidelines, merely turned on the
distinction whether he was convicted under a subsection of § 30.02 of the Texas
Penal Code that required him to possess the specific intent, at the time of his
unlawful entry, to commit a crime or whether he was convicted under a
subsection that merely required that he commit or attempt to commit a crime
after having made the unlawful entry. See United States v. Constante, 544 F.3d
584, 585-87 (5th Cir. 2008); United States v. Herrera-Montes, 490 F.3d 390, 392

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(5th Cir. 2007). He has not shown how that distinction would have had any
significant effect on the district court’s evaluation of the seriousness of his
burglary offenses for purposes of its upward departure under § 4A1.3.
       Third, the district court’s statement that the 120-month sentence “may be
a little low” indicates that it was unlikely that the district court would have
imposed a lesser sentence merely because of such a distinction.            Because
Rodriguez-Vigil cannot show a reasonable probability that he would have
received a lesser sentence but for any error regarding the characterization of his
burglary offenses as crimes of violence under the Guidelines, he cannot satisfy
his burden under plain error review with respect to this issue. See Davis, 602
F.3d at 647.
       Rodriguez-Vigil also contends that the district court erred in concluding
that its upward departure to a 120-month sentence was appropriate. Regarding
the district court’s decision to depart under § 4A1.3, he argues that his criminal
history category did not substantially under-represent the seriousness of his
criminal history or risk of recidivism because he had no pending charges or
consolidated offenses, did not have any criminal conduct that was not assessed
criminal history points, and did not have any convictions for which he had
received a lenient sentence. Regarding the extent of the departure, he contends
that a departure of 33-months above the top of his advisory guidelines range was
not justified by the facts of his case. Because he sufficiently preserved this point
of error, we review for abuse of discretion the district court’s decision to depart
upward and the extent of the departure. See United States v. Zuniga-Peralta,
442 F.3d 345, 347 (5th Cir. 2006).       A sentencing court does not abuse its
discretion in deciding to depart upward when its reasons for doing so advance
the objectives set forth in § 3553(a)(2) and are justified by the facts of the case.
Id.
       Under § 4A1.3, information that may indicate under-representation of a
defendant’s criminal history or likelihood of recidivism includes “prior

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                                  No. 10-10036

sentence[s] of substantially more than one year imposed as a result of
independent crimes committed on different occasions.” § 4A1.3(a)(2)(B); accord
United States v. Carter, 953 F.2d 1449, 1460 (5th Cir. 1992). Here, Rodriguez-
Vigil’s Texas convictions in 1990 for burglary of a habitation, 1991 for burglary
of a habitation, and 1994 for aggravated sexual assault of a child constituted
three independent convictions that were committed on different occasions for
which he was ultimately sentenced to imprisonment terms of 8 years, 5 years,
and 10 years, respectively. Additionally, he was sentenced to two years of
imprisonment on his 2009 conviction for indecency with a child.
      In imposing the upward departure, the district court indicated that
Rodriguez-Vigil had been removed from the United States after having engaged
in “very serious conduct” and that his commission of indecency with a child in
2007 after illegally returning to the United States was part of his continuing
“pattern of violence.”    The district court did not abuse its discretion in
determining that an upward departure was appropriate based on his criminal
history score’s under-representation of the seriousness of his past convictions
and the likelihood that he would continue his pattern of criminal activity. See
§ 4A1.3(a)(2)(B); Zuniga-Peralta, 442 F.3d at 347; Carter, 953 F.2d at 1460.
      Regarding the extent of the departure, this court has upheld upward
departures of greater magnitudes. See, e.g., United States v. Jones, 444 F.3d
430, 433, 442 (5th Cir. 2006) (upholding 120-month sentence where maximum
of guidelines range was 57 months); United States v. Smith, 417 F.3d 483, 492
(5th Cir. 2005) (upholding 120-month sentence where maximum of guidelines
range was 41 months); United States v. Daughenbaugh, 49 F.3d 171, 174 (5th
Cir. 1995) (upholding 240-month sentence where maximum of guidelines range
was 71 months). “That the Court of Appeals ‘might reasonably have concluded
that a different sentence was appropriate’ is an insufficient justification for
reversal of the district court, because the sentencing judge is in a superior
position to evaluate the § 3553(a) factors . . . .” United States v. Armstrong, 550

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                                  No. 10-10036

F.3d 382, 405 (5th Cir. 2008) (quoting Gall, 552 U.S. at 51), cert. denied, 130 S.
Ct. 54 (2009). The district court indicated that the 120-month sentence was
sufficient to account for the § 3553(a) factors and the reasons underlying its
decision to depart, and the district court provided individualized, case-specific
reasons for imposing the sentence. Rodriguez-Vigil has not shown that the
district court abused its discretion in imposing an upward departure to a 120-
month sentence. See Zuniga-Peralta, 442 F.3d at 347.
      AFFIRMED.




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