     Case: 09-11095 Document: 00511282153 Page: 1 Date Filed: 11/02/2010




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

                                                 FILED
                                                                          November 2, 2010

                                       No. 09-11095                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee
v.

SERGIO DOMINGUEZ-RODRIGUEZ

                                                   Defendant-Appellant




           Appeal from the United States United States District Court
                       for the Northern District of Texas
                                 (6:09-CR-31-1)


Before KING, GARWOOD, and DAVIS, Circuit Judges.
PER CURIAM:*
       Sergio Dominguez-Rodriguez pleaded guilty to illegal reentry after
deportation. Dominguez-Rodriguez’s presentencing report (PSR) assigned a base
level of eight, which was increased by eight levels pursuant to U.S.S.G. § 2L1.2
based on a prior aggravated felony conviction for five counts of lewd assault acts
against a child. After a three-level deduction for acceptance of responsibility,
Dominguez-Rodriguez's total offense level was 13. This offense level, combined



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-11095

with a Category I criminal history score, resulted in an advisory Guidelines
range of 12-18 months of imprisonment.
       Both parties adopted the PSR, but the Government requested that the
district court consider increasing the defendant’s base offense level by sixteen,
rather than eight, levels based on his 1997 guilty-plea conviction for five counts
of lewd assault acts against a child in violation of Florida Statute section
800.04.1 Dominguez-Rodriguez had been sentenced to only three months and
twelve days’ imprisonment for that crime, and therefore the 1997 conviction was
not assessed any criminal history points because it occurred outside the
applicable time period for criminal history calculation purposes. This prior
conviction, however, was used to increase Dominguez-Rodriguez's base offense
level by eight levels pursuant to U.S.S.G. § 2L1.2(b)(1)(C) because the prior
conviction was an aggravated felony for which Dominguez-Rodriguez was
previously deported. The Government argued that Dominguez-Rodriguez's prior

      1
        This statute has been amended since the defendant’s offense– once in 1999 and again
in 2000. The statute, as it was in effect at the time of defendant’s offense, read:
       “A person who:
       (1) Handles, fondles, or assaults any child under the age of 16 years in a lewd,
       lascivious, or indecent manner;
       (2) Commits actual or simulated sexual intercourse, deviate sexual intercourse,
       sexual bestiality, masturbation, sadomasochistic abuse, actual lewd exhibition
       of the genitals, or any act or conduct which simulates that sexual battery is
       being or will be committed upon any child under the age of 16 years or forces or
       entices the child to commit any such act;
       (3) Commits an act defined as sexual battery under s. 794.011(1)(h) upon any
       child under the age of 16 years; or
       (4) Knowingly commits any lewd or lascivious act in the presence of any child
       under the age of 16 years,
       without committing the crime of sexual battery, commits a felony of the second
       degree, punishable as provided in s. 775.082, s. 775.083, or s.775.084. Neither
       the victim's lack of chastity nor the victim's consent is a defense to the crime
       proscribed by this section. A mother's breastfeeding of her baby does not under
       any circumstance violate this section.”




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                                  No. 09-11095

conviction constituted “sexual abuse of a minor” making it a crime of violence
that should result in the increase of Dominguez-Rodriguez's base offense level
by sixteen levels. This would result in an advisory Guidelines sentencing range
of thirty-seven to forty-six, rather than twelve to eighteen, months of
imprisonment.
      At Dominguez-Rodriguez’s November 2009 sentencing hearing, after
considering the facts of the instant conviction, the facts of Dominguez-
Rodriguez’s 1997 conviction, the PSR, and the 18 U.S.C. § 3553(a) factors, the
district court did not change the PSR's computations but determined that an
upward variance was warranted.              The district court then sentenced
Dominguez-Rodriguez to forty-eight months of imprisonment and three years of
supervised release. Dominguez-Rodriguez objected at the sentencing hearing to
the procedural and substantive nature of his sentence, and filed timely notice of
appeal. Because Dominguez-Rodriguez objected to the reasonableness of the
sentence at sentencing, his claims are reviewed under the abuse-of-discretion
standard. United States v. Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir. 2006).
      This court "‘first ensure[s] that the district court committed no significant
procedural error' and ‘then consider[s] the substantive reasonableness of the
sentence imposed.'" United States v. Herrera-Garduno, 519 F.3d 526, 529 (5th
Cir. 2008) (quoting Gall v. United States, 128 S.Ct. 586, 597 (2007)). Dominguez-
Rodriguez, represented by counsel, has on appeal only challenged the
substantive reasonableness of his sentence, arguing that the sentence is greater
than necessary to satisfy the sentencing goals of section 3553(a).
      Under the advisory regime following United States v. Booker, 543 U.S. 220
(2005), courts have three sentencing options: (1) imposing a sentence within the
properly calculated Guidelines range; (2) imposing a sentence that includes an
upward or downward departure as authorized by the Guidelines; or (3) imposing



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                                  No. 09-11095

a non-Guidelines sentence or “variance” that is either higher or lower than the
Guidelines range. United States v. Smith, 440 F.3d 704, 706 (5th Cir. 2006).
      Here, the district court stated that Dominguez-Rodriguez's sentence was
an upward variance, or a non-Guidelines sentence. A sentence that varied from
the Guidelines is "unreasonable if it (1) does not account for a factor that should
have received significant weight, (2) gives significant weight to an irrelevant or
improper factor, or (3) represents a clear error of judgment in balancing the
sentencing factors." United States v. Peltier, 505 F.3d 389, 392 (5th Cir. 2007)
(internal quotation marks and citation omitted). With respect to a variance, this
court may "take the degree of variance into account and consider the extent of
a deviation from the Guidelines," Gall,128 S.Ct. at 595, but "must give due
deference to the district court's decision that the § 3553(a) factors, on a whole,
justify the extent of the variance." Id. at 597.
      The variance in this case, of thirty months above the top of the Guidelines
sentencing range, is significant, but this court has upheld variances similar to
and greater than the increase to Dominguez-Rodriguez’s sentence. See, e.g.,
United States v. Brantley, 537 F.3d 347, 348-50 (5th Cir. 2008). This court has
held that a     mathematical calculation of percentage deviation from the
Guidelines alone does not dictate the reasonableness or not of a sentence.
United States v. Key, 599 F.3d 469, 476 n.1 (5th Cir. 2010). Therefore, we turn
to the question of whether “the justification is sufficiently compelling to support
the degree of the variance.” Gall, 128 S.Ct. at 597.
      The district court was very clear that its justification for the variance was
the defendant’s criminal history and his character as, in the judgment of the
district court, “a child molester.”   Dominguez-Rodriguez contends that the
district court placed too much reliance on these factors in its section 3553(a)
analysis, particularly since his conviction was twelve years old, while not
properly taking into account other factors such as his wife’s illness, his history

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of steady employment, and his lack of criminal convictions since the 1997
offense.
      A sentencing court may take into account a broad spectrum of behavior,
including not only a defendant’s prior convictions but also past criminal behavior
for which convictions did not result.       Nichols v. United States, 114 S.Ct. 1921,
1928 (1994). In this case, the district court took into account the defendant’s
guilty plea for lewd and lascivious assault against a child, as well as the broader
facts of that crime, which indicated that the defendant sexually assaulted his
step-daughter over a three-year period, beginning when she was nine years old.2
      The district court’s sentence, while a non-Guidelines sentence, derives
strong support from the policy considerations of the Guidelines. The court did
not actually amend the PSR, or the calculation of the advisory guideline range,
to reflect the Government’s contention that Dominguez-Rodriguez’s prior crime
should be considered “sexual abuse of a minor” and thereby a crime of violence,
although the court could have done so consistent with other courts considering
the identical provision of the Florida Statute.             See, e.g. United States v.
Londono-Quintero, 289 F.3d 147 (1st Cir. 2002) (finding violation of section
800.04 to be “sexual abuse of a minor” as that term was used in the version of
U.S.S.G. § 2L1.2 in place at that time). Nevertheless, the 48-month sentence the



      2
        The PSR described Dominguez-Rodriguez’s prior offense as follows:
      “According to a Miami-Dade Police Department ... report, the defendant is the
      victim’s stepfather and resided with the victim, age 12. The victim stated that
      from 1987, when she was 9 years old, until February 1990, she was sexually
      molested by the defendant. The victim advised that the defendant would fondle
      her buttocks, breasts, and vaginal area, outside and inside her clothing. The
      defendant also exposed his penis to the victim and asked the victim to touch it.
      The victim advised that the sexual assault would occur inside of the residence
      when they were alone together. The victim also stated ... that on two or three
      occasions, the defendant penetrated her vagina with his finger. On March 28,
      1990, the victim was examined at the rape treatment center. Physical evidence
      was discovered that corroborated the victim’s story. The victim stated that the
      sexual assault would occur once or twice per week.”

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district court imposed via variance is nearly identical to the top of the Guidelines
range where the prior crime is a crime of violence. See U.S.S.G. § 2L1.2(b)(1)(A)
and note 1(B)(iii) (crime of violence includes “sexual abuse of a minor”). It is
clear that the district court based its sentencing upon an assessment that the
severity of the prior crime, whether or not it precisely fit the contours of the
“crime of violence” language in the Guidelines, warranted a sentence of the
magnitude imposed by the Guidelines for a crime of violence. Because of the
close correspondence between Dominguez-Rodriguez’s prior crime of sexual
assault against his 9-year-old stepdaughter and the Guidelines’ inclusion of
“sexual abuse against a minor” as a crime of violence, such an assessment is well
within the discretion afforded to the district court in sentencing. Furthermore,
it was within the district court’s discretion to weigh the defendant’s criminal
history and character more heavily than the mitigating circumstances raised by
defense counsel at the sentencing hearing.
      For the foregoing reasons, the judgment of the district court is affirmed.
                                   AFFIRMED




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