     Case: 09-10295     Document: 00511006288          Page: 1    Date Filed: 01/15/2010




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

                                                  FILED
                                                                          January 15, 2010
                                     No. 09-10295
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JESUS RESENDIZ-MARTINEZ, also known as Jesus Resendiz-Ramirez,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:08-CR-173-1


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        Jesus Resendiz-Martinez (Resendiz) appeals the 48 month sentence
imposed following his guilty plea conviction for illegal reentry following
deportation, in violation of 8 U.S.C. § 1326(a) and (b)(1)(2). Resendiz challenges
the district court’s upwardly departing from criminal history category VI
pursuant to U.S.S.G. § 4A1.3(a), p.s., arguing that the decision to depart was not
justified by the facts in his case and that the court failed to follow the
incremental approach in determining the extent of departure.

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-10295    Document: 00511006288 Page: 2         Date Filed: 01/15/2010
                                 No. 09-10295

      We need not resolve the parties’ dispute over the standard of review
governing Resendiz’s first issue because under either standard, Resendiz’s
argument fails. The district court found that the criminal history substantially
underrepresented Resendiz’s serious criminal history and the likelihood that he
will commit other crimes. Here and below, Resendiz challenged only the first
part of that finding. Under § 4A1.3, a district court may upwardly depart on
either basis. Moreover, the district court’s reasons for departure advanced the
objectives of sentencing set forth in 18 U.S.C. § 3553(a)(2) and are justified by
the facts of this case. See United States v. Zuniga-Peralta, 442 F.3d 345, 347
(5th Cir. 2006).
      Resendiz’s arguments below did not preserve his argument that the
district court erred by failing to following the incremental approach required by
§ 4A1.3(a)(4)(B). This is the type of error that, if proper objection had been
made, the district court could have corrected. See Puckett v. United States, 129
S. Ct. 1423, 1428 (2009); United States v. Ocana, 204 F.3d 585, 589 (5th Cir.
2000). The error here is the district court’s failure to “show its work” in arriving
at the 48 month sentence. Resendiz does not argue, and there is nothing in the
record to show, that the district court would have, or could not have, imposed a
lesser sentence if it had employed the incremental approach. Thus, Resendiz’s
substantial rights were not affected. See Puckett, 129 S. Ct. at 1431; United
States v. Jones, 489 F.3d 679, 682 (5th Cir. 2007).
      AFFIRMED.




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