                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 11-3022
                                   ___________

United States of America,            *
                                     *
          Plaintiff - Appellee,      *
                                     * Appeal from the United States
     v.                              * District Court for the
                                     * Northern District of Iowa.
Benjamin Mendez, Jr.,                *
                                     *
          Defendant - Appellant.     *
                                ___________

                             Submitted: June 11, 2012
                                Filed: July 19, 2012
                                 ___________

Before MURPHY, MELLOY, and COLLOTON, Circuit Judges.
                           ___________

MELLOY, Circuit Judge,

       Defendant Benjamin Mendez, Jr., appeals the sentence he received after
pleading guilty to being a felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1) and § 924(a)(2). The district court1 imposed a traditional upward
departure based upon Defendant's understated criminal history and pattern of
recidivism. Defendant challenges his sentence as relying upon unsupported factual
assertions surrounding his present offense and purportedly inaccurate and objected-to
factual assertions from narratives in the presentence investigation report (PSR)

      1
        The Honorable Mark W. Bennett, United States District Judge for the Northern
District of Iowa.
describing his prior offenses. Because the district court did not rely upon
impermissible evidence, reach any clearly erroneous factual determinations, abuse its
discretion in imposing an upward departure, or impose a substantively unreasonable
sentence, we affirm.

      On June 27, 2010, officers responded to multiple reports of fireworks or shots
having been fired at a home in Storm Lake, Iowa. After arriving at the home, officers
received an additional report that six to eight shots had been fired. An officer then
observed Defendant exit the back of the home carrying a semi-automatic 0.40 caliber
handgun. The officer drew his own weapon and repeatedly ordered Defendant to stop.
Defendant did not stop, but continued to a fence at the rear of the home's yard and
threw the handgun over. He then surrendered. Officers subsequently found six spent
0.40 caliber shell casings in a garbage can in the home.

       Eventually, Defendant pleaded guilty with no plea agreement in place. The
PSR assessed twenty criminal history points which were reduced to sixteen because
eight of the twenty were for "one-point" offenses, and the Guidelines only permit four
such offenses to be counted. See U. S. Sentencing Guidelines Manual § 4A1.1(c)
(providing that a maximum total of four criminal history points may be assessed for
such offenses). Defendant had five other convictions that received no criminal history
points. Defendant received two additional points, resulting in a total of eighteen
criminal history points, because he committed the present offense while on state
probation. See id. § 4A1.1(d). This resulted in Defendant being placed in criminal
history category VI.

      Based upon U.S.S.G. § 2K2.1(a)(2) and the fact that Defendant had two prior
convictions for burglary, one prior conviction for assault with a weapon, and one prior
conviction for possession of marijuana with intent to distribute, his base offense level
was twenty-four. He received a three-level reduction for acceptance of responsibility,



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resulting in a total offense level of twenty-one and an advisory Guidelines range of
77–96 months.

       The district court found an upward departure based upon recidivism and
understated criminal history appropriate. Because Defendant was already in the
highest criminal history category, however, the district court could not depart
horizontally to a higher criminal history category. The court elected to depart
vertically, adding two offense levels to its base calculation. This resulted in an
adjusted advisory Guidelines range of 92–115 months. The statutory maximum was
120 months' imprisonment, and the court imposed a sentence of 108 months, finding
the sentence to be sufficient but not greater than necessary pursuant to the 18 U.S.C.
§ 3553(a) factors.

       Defendant now presents several inter-related arguments which appear to be
premised on the mistaken conclusion that the district court made erroneous factual
determinations concerning the details of the present offense and Defendant's many
prior offenses. Defendant argues there was confusion in the record as to whether he
actually fired a weapon on the day of the present offense, whether the firearm had an
obliterated or missing serial number or whether the number was simply not reported,
whether he adequately objected to factual narratives in the PSR surrounding his prior
offenses, and whether he also possessed or fired a shotgun on the day of the present
offense.

        It is clear to us upon reading the sentencing transcript and reviewing the record
in this matter that the district court based its departure decision and overall sentencing
determination broadly on Defendant's obvious pattern of recidivism and exclusively
on factors clearly supported by the record. That the district court and the attorneys at
sentencing discussed arguably confusing issues and aspects of the record does not lead
to the conclusion that the experienced district court judge in this case relied upon any



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of those issues or objected-to portions of the PSR in reaching its conclusions.2 Rather,
the court itself raised with the attorneys the concerns about confusion in the record.
What the court actually found was that "[Defendant's] criminal history started early
at age 17, and it really has never abated." The court listed convictions by year and
concluded, "it's just an unrelenting pattern of repeated—I mean, he's a serial
recidivist." The court later stated, "So that's to me one of the most aggravating factors
in this case, maybe the most aggravating factor. Nothing seem[s]—I mean, three
prison sentences you think would deter most people from being a felon in possession.
But it obviously didn't deter Mr. Mendez at all."

       The district court, then, concluded Defendant was an incorrigible recidivist
based upon the existence and timing of his prior convictions. These facts were
undisputed. The resulting decision to depart relied upon grounds that we have
recognized as valid bases for such departures: the existence of several prior
convictions not used for calculating criminal history points, a repeated pattern of
criminal behavior evincing a likelihood of future criminal conduct, and the failure of
prior shorter terms of incarceration to deter additional offenses. See U.S.S.G.
§ 4A1.3(a)(2)(A) (stating that prior offenses not scored for criminal history purposes
can support a traditional departure pursuant to § 4A1.3(a)(1)); United States v. King,
627 F.3d 321, 322 (8th Cir. 2010) (affirming an upward departure based upon a
"longstanding pattern of violence"); United States v. Walking Eagle, 553 F.3d 654,
657 (8th Cir. 2009) ("In deciding the likelihood that a defendant may commit other
crimes, a court may take into account any evidence of obvious incorrigibility and
conclude that leniency has not been effective." (internal marks and citations omitted));
United States v. Mugan, 441 F.3d 622, 633 (8th Cir. 2006) (noting a "consistent
pattern" as not being represented by a criminal history category); United States v.




      2
      Given our resolution of this issue we need not address the sufficiency of
Defendant's objections to the PSR.

                                          -4-
Morse, 983 F.2d 851, 854 (8th Cir. 1993) (affirming an upward departure in reliance
upon offenses technically excluded pursuant to § 4A1.1(c)).

       Defendant also argues that the district court abused its discretion by failing to
take into consideration the facts that he committed many of his prior offenses before
turning twenty-one and that some of his prior offenses were already considered for
two purposes before he was given a departure. As to the latter, Defendant argues his
offenses were counted for criminal history purposes and also to set the heightened
base offense level of twenty-four pursuant to U.S.S.G. § 2K2.1(a)(2). These
arguments are without merit.

       The district court expressly commented upon Defendant's age at the time of his
earliest convictions. The court, however, elected to emphasize the length of
Defendant's period of criminal behavior as evidence of incorrigibility rather than focus
upon Defendant's age at the beginning of that period as a mitigating factor. This
election was well within the court's discretion. United States v. Wisecarver, 644 F.3d
764, 774 (8th Cir. 2011) (stating that a court may "assign relatively greater weight to
the nature and circumstances of the offense than to the mitigating personal
characteristics of the defendant").

       Further, even if Defendant's double-counting type argument enjoyed legal merit
as a general matter, it rests upon a factually flawed view of the record. U.S.S.G.
§ 2K2.1(a)(2) only requires two qualifying predicates to reach a base offense level of
twenty-four. Defendant had four qualifying predicates. Similarly, he had eighteen
criminal history points while only thirteen were required to place him in criminal
history category VI. It is simply not the case, then, that the departure necessarily
relied upon convictions already used to elevate his advisory range by other means.

       Finally, having determined that the district court committed no error in relation
to the traditional departure, we find no abuse of discretion in the District Court's

                                          -5-
application of 18 U.S.C. § 3553(a) and imposition of a 108-month sentence. The
court expressly referenced not only the issues discussed above, but discussed the
balancing of societal and defendant-specific deterrent concerns and noted its reliance
on several personal letters in support of Defendant. The sentence imposed was not
unreasonable.

      We affirm the judgment of the district court.
                      ______________________________




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