                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 02-3831
                                   ___________

United States of America,             *
                                      *
            Plaintiff-Appellee,       *
                                      *
      v.                              *
                                      *
Armando Aguilar-Lopez, also known as * Appeal from the United States
Carlos Fuentes-Ascencio, also known * District Court for the Northern
as Armando Lopez-Aguilar, also known * District of Iowa.
as Carlos Ascencio-Fuentes, also      *
known as Armondo Hernandez-Lopez, *
also known as Angel,                  *
                                      *
            Defendant-Appellant.      *
                                 ___________

                             Submitted: May 13, 2003
                                Filed: June 5, 2003
                                 ___________

Before LOKEN, Chief Judge, BRIGHT and MURPHY, Circuit Judges.
                              ___________

MURPHY, Circuit Judge.

       Armando Aguilar-Lopez pled guilty to illegal reentry following deportation in
violation of 8 U.S.C. §§ 1326(a) and (b), and he was sentenced to 46 months
imprisonment. The district court1 found that criminal history category VI did not
adequately reflect the seriousness of his past criminal conduct and departed upward
from the guideline range by one offense level. See United States Sentencing
Commission, Guidelines Manual, § 4A1.3 (p.s.) (2002) [U.S.S.G.]. Aguilar-Lopez
appeals the upward departure. We affirm.

       Aguilar-Lopez was stopped by Iowa state police on May 8, 2002, for driving
93 miles an hour in a 65 miles an hour zone, and was found to be in possession of
methamphetamine. He told the officers that his name was Carlos Fuentes Ascencio,
but his true identity was obtained through fingerprint records. After it was discovered
that Aguilar-Lopez was an illegal alien who had already been deported to Mexico
twice, he was charged with illegal reentry following deportation.

        Aguilar-Lopez pled guilty, and the presentence report calculated his adjusted
offense level at 13 and his criminal history category at VI, with a guidelines
sentencing range of 33 to 41 months. The report suggested that an upward departure
might be appropriate because category VI significantly "under-represents the
seriousness of [his] criminal history." The district court agreed, and gave notice at
the sentencing hearing that it was "considering an upward departure … for
underrepresentation of criminal history." After hearing argument, the court stated
that it would "do an upward departure based on the defendant's criminal history." The
court indicated it would move up one level on the sentencing table, which raised the
sentencing range to 37 to 46 months. It then sentenced Aguilar-Lopez to 46 months.

      The Sentencing Commission has foreseen that upward departures from the
guidelines range may sometimes be needed to ensure just punishment in a particular
case. Section 4A1.3 of the sentencing guidelines states:


      1
        The Honorable Mark W. Bennett, Chief Judge, United States District Court
for the Northern District of Iowa.

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      If reliable information indicates that the criminal history category does
      not adequately reflect the seriousness of the defendant's past criminal
      conduct … the court may consider imposing a sentence departing from
      the otherwise applicable guideline range. Such information may
      include, but is not limited to, information concerning … (a) prior
      sentence(s) not used in computing the criminal history category … [and]
      (e) prior similar adult conduct not resulting in a criminal conviction.

U.S.S.G. § 4A1.3.

      The presentence report determined that Aguilar-Lopez had 16 criminal history
points, three points more than the category VI threshold. He received five points for
two separate vehicle burglaries, two points for receiving stolen property, two points
for giving a false identity to a police officer, three points for possession of
methamphetamine, one point for an expired vehicle registration—an offense
prosecuted under an alias, one point for possession of methamphetamine and
operating a vehicle while intoxicated (stemming from the traffic stop on May 8,
2002), and an additional two points for committing the instant offense while on
probation, for a total of 16 points.


      Aguilar-Lopez's criminal conduct has not been limited to the offenses included
in his criminal history calculation, however. He has three additional theft and
burglary convictions which were not included because they were committed before
he was eighteen. See U.S.S.G. § 4A1.2(d)(2)(B). He also currently faces an
outstanding reckless driving charge from 2001 on which he failed to appear, and he
has illegally reentered the country once before this offense. He was deported in April
of 1996 but returned to this country in less than a month, was deported again in




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January 1998 and given an I-294 form stating that he was not eligible ever to reenter
the United States, only to return again within a month.


      Aguilar-Lopez contends that his record does not warrant a departure because
a repeated history of criminal violations is inherent in a category VI classification.
He cites that part of § 4A1.3 which states that "the nature of the prior offenses rather
than simply their number" should be considered before any departure and argues that
his record is comprised of minor, nonviolent offenses. See also United States v. Leaf,
306 F.3d 529, 532–33 (8th Cir. 2002) (departing upward from category II to category
VI based on history of uncharged violent conduct). Aguilar-Lopez also makes a brief
argument that the district court did not adequately explain its decision to depart.


      Congress recently modified the standard of review for reviewing departures
from the sentencing guidelines. See PROTECT Act, Pub. L. No. 108-21, § 401(d),
117 Stat. 650 (2003) (amending 18 U.S.C. § 3742(e)). The PROTECT Act became
law on April 30, 2003, and it requires a sentencing judge to make a written statement
of reasons for departure, whether upward or downward. Id. § 401(c) (amending 18
U.S.C. § 3553(c)). That requirement is to be examined de novo on review, as is the
issue of whether a departure "is not justified by the facts of the case." 18 U.S.C. §
3742(e).


      Section 4A1.3 calls for a careful evaluation of a defendant's criminal history
before any departure to determine "the seriousness of a criminal record." In United
States v. Vagenas we affirmed a district court's decision to depart from criminal
history category VI. 318 F.3d 819, 820–21 (8th Cir. 2003). Where a defendant's

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repeated criminal behavior reflects "obvious incorrigibility," an upward departure is
appropriate. Id. (defendant's record included possession of methamphetamine, mail
theft, and forgery) (quoting United States v. Cook, 972 F.2d 218, 222 (8th Cir.
1992)); see also United States v. Lara-Banda, 972 F.2d 958, 959–60 (8th Cir. 1992)
(departing beyond category VI based on extensive criminal record including reckless
driving, intoxication, carrying a concealed weapon, criminal mischief, driving while
intoxicated, assault, and illegal reentry).      That none of Aguilar-Lopez's prior
convictions, sentences, or deportations have altered his behavior demonstrates that
he is an "unrepentant, incorrigible, recidivist, who poses a significant threat to the
safety of the community." Lara-Banda, 972 F.2d at 960. Under these circumstances
the district court did not err by granting an upward departure for underrepresentation
of criminal history.


      The PROTECT Act also now requires the sentencing court to state in the
written order of judgment the "specific reason" for departing from the guidelines.
Pub. L. No. 108-21, § 401(c)(1), 117 Stat. 650 (2003) (amending 18 U.S.C. §
3553(c)). Although the defendant in this case was sentenced well before the
PROTECT Act was enacted, the district court attached a written "Statement of
Reasons" to the judgment, stating that an upward departure was ordered "based on
under-representation of criminal history." Although the court did not cite the specific
instances of past criminal conduct on which it relied, it stated that it based its decision
on Aguilar-Lopez's "repeated history of criminal violations," a history that was
extensively detailed in the presentence report. Sentencing courts will now need to
take care to make specific written findings of their reasons for departing, whether
upward or downward. The district court had no obligation to provide written reasons

                                            5
at the time it sentenced Aguilar-Lopez, but the written statement it furnished is
sufficient in this case to allow review of the decision to depart.


      The judgment of the district court is affirmed.


      A true copy.


             Attest:


                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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