     Case: 12-31021    Document: 00512133915      Page: 1   Date Filed: 02/04/2013




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

                                                                     FILED
                                                                   February 4, 2013
                                  No. 12-31021
                                                                    Lyle W. Cayce
                                                                         Clerk
UNITED STATES OF AMERICA,

                                             Plaintiff–Appellee,
v.

NELFIN JESUALDO ZELAYA-ROSALES,


                                             Defendant–Appellant.



                 Appeal from the United States District Court
                    for the Eastern District of Louisiana


Before REAVLEY, PRADO, and ELROD, Circuit Judges.
PER CURIAM:
      Nelfin Jesualdo Zelaya-Rosales (“Zelaya-Rosales”) appeals his sentence of
twelve months imprisonment, challenging: (1) the district court’s lack of notice
that it was considering an upward departure from his Sentencing Guidelines
range, and (2) the reasonableness of his sentence. We AFFIRM.
                                        I.
      Zelaya-Rosales pleaded guilty to a one-count indictment charging him with
illegal reentry of a removed alien in violation of 8 U.S.C. § 1326(a). The
presentence report (PSR) assigned Zelaya-Rosales a base offense level of eight.
His offense level was then reduced by two levels for acceptance of responsibility.
Zelaya-Rosales’ total offense level of six, combined with his criminal history
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                                  No. 12-31021

category of I yielded an advisory Guidelines range of zero to six months
imprisonment. The PSR recommended a six-month sentence. The PSR did not
identify any factors warranting a departure, and Zelaya-Rosales did not object
to the PSR.
      At sentencing, the district court imposed a six-month upward departure,
without prior notice, based on Zelaya-Rosales’ five previous immigration
encounters and four prior removals. The district court overruled Zelaya-Rosales’
objection to the reasonableness of his twelve-month sentence. Zelaya-Rosales
timely appealed.
                                        II.
      Zelaya-Rosales’ first claim on appeal challenges the district court’s lack of
notice that it was considering an upward departure from his Guidelines range.
Generally, we review de novo claims that a defendant was not given reasonable
notice as to grounds for an upward departure. United States v. Andrews, 390
F.3d 840, 844 (5th Cir. 2004). Because Zelaya-Rosales did not object to the lack
of notice, however, our review is for plain error only. United States v. Olano, 507
U.S. 725, 730 (1993). To succeed on plain-error review, Zelaya-Rosales must
show: (1) an error, (2) that is clear and obvious, and (3) affected his substantial
rights. United States v. Reyna, 358 F.3d 344, 350 (5th Cir. 2004). If he makes
such a showing, we may exercise our discretion to correct the error only if it
seriously affects the “fairness, integrity, or public reputation of the judicial
proceedings.” Id. (quoting Olano, 507 U.S. at 732).
      The government concedes that the district court’s lack of notice that it
intended to depart upward from the Guidelines is a clear and obvious error in
violation of Federal Rule of Criminal Procedure 32(h), which provides:




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                                      No. 12-31021

               Before the court may depart from the applicable
               sentencing range on a ground not identified for
               departure either in the presentence report or in a
               party’s prehearing submission, the court must give the
               parties reasonable notice that it is contemplating such
               a departure. The notice must specify any ground on
               which the court is contemplating a departure.
Fed. R. Crim. P. 32(h).          Under prong three of the plain-error analysis,
Zelaya-Rosales must show a “reasonable probability that the result of the
proceedings would have been different but for the error.” Olano, 507 U.S. at 734.
Relying on our unpublished decision in United States v. Chinchilla-Galvan, 242
F. App’x 228 (5th Cir. 2007) (unpublished), Zelaya-Rosales argues that the
district court’s lack of notice that it was considering an upward departure
affected his substantial rights because it resulted in a sentence twice the
maximum of his Guidelines range and deprived him of an opportunity to prepare
a response or an objection to the upward departure. In Chinchilla-Galvan, the
government conceded that the error affected the defendant’s substantial rights.1
In the instant case, the government disputes that the error affected Zelaya-
Rosales’ substantial rights on the basis that he cannot show a reasonable
probability that the district court would have imposed a lesser sentence if it had
given him notice of its intent to depart upward from the Guidelines.
      We agree with the government’s position. The sentencing transcript shows
that the district court relied primarily on Zelaya-Rosales’ five previous
immigration encounters and four prior removals—facts contained in the PSR
that he never disputed—as grounds for the upward departure. Given that
Zelaya-Rosales does not dispute the accuracy of his immigration encounters and
prior removals, he has not shown a reasonable probability that the district court
would have imposed a lesser sentence if it had given him notice of its intent to



      1
          This concession is reflected in the government’s briefing on appeal in Chinchilla-
Galvan.

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depart from the Guidelines. Therefore, the error does not affect his substantial
rights. See United States v. Jones, 444 F.3d 430, 443 (5th Cir. 2006) (affirming
that a district court’s lack of notice of its intent to depart upward from the
Guidelines did not affect a defendant’s substantial rights on plain-error review
when it was not “reasonably probable that the district court would have chosen
a lesser sentence” if it had provided such notice and the defendant had an
opportunity to object to the departure).
      Even assuming arguendo that the error affected Zelaya-Rosales’
substantial rights, he has not met his burden under prong four of plain-error
review to show that the error seriously affected the “fairness, integrity, or public
reputation of the judicial proceedings.” Reyna, 358 F.3d at 350 (quoting Olano,
507 U.S. at 732). As noted above, Zelaya-Rosales does not dispute the accuracy
of his prior immigration encounters and removals, and therefore, cannot show
that the sentencing proceedings would have been different if the district court
had given notice of its intent to depart upward from the Guidelines. Concluding
that the specific facts of this case do not give rise to a miscarriage of justice, we
decline to exercise our discretion to correct the error. See United States v.
Tampico, 297 F.3d 396, 403 (5th Cir. 2002) (affirming that a district court’s lack
of notice to depart upward from the Guidelines did not seriously affect the
fairness of the proceedings when the defendant did not explain how he would
have objected or responded if the district court had given such notice).
      Zelaya-Rosales’ second claim on appeal challenges the reasonableness of
his twelve-month sentence. We review “the district court’s decision to depart
upwardly and the extent of that departure for abuse of discretion.” United
States v. Saldana, 427 F.3d 298, 308 (5th Cir. 2005). There is no abuse of
discretion if the district court’s reasons for departing: (1) “advance the objectives
set forth in 18 U.S.C. § 3553(a)(2),” and (2) are justified by the facts of the case.”
Id. at 310.
      Zelaya-Rosales argues that the district court’s six-month upward

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departure was an abuse of discretion because the departure was greater than
necessary to meet the sentencing goals of § 3553(a)(2). More specifically, he
contends that his maximum Guidelines sentence of six months was more than
sufficient to reflect the seriousness of his offense in light of his low criminal
history score and his motives for entering the United States illegally—namely,
to provide for his family and to escape violent criminals that Honduran
authorities have now captured.
      Under § 3553(a)(2), the district court may consider the need “to afford
adequate deterrence to criminal conduct” as a factor when making sentencing
determinations. 18 U.S.C. § 3553(a)(2)(B). Moreover, § 4A1.3(a)(1) of the
Guidelines provides for an upward departure if “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.” U.S. Sentencing Guidelines Manual
[hereinafter U.S.S.G.] § 4A1.3(a)(1). Such information may include, but is not
limited to, “[p]rior similar misconduct established by a civil adjudication” and
“[p]rior similar adult criminal conduct not resulting in a criminal conviction.”
Id. § 4A1.3(a)(2)(C), (E).    Here, the district court gave an individualized
assessment of the § 3553(a) factors and determined in light of Zelaya-Rosales’
five previous immigration encounters and four prior removals that the maximum
sentence under the Guidelines range was inadequate to deter him from
reentering the United States illegally. Therefore, the district court did not abuse
its discretion because it was permitted to consider the need for deterrence as a
sentencing factor, and Zelaya-Rosales’ previous immigration encounters and
removals in departing upward from his sentencing range.                   See Id.
§ 4A1.3(a)(2)(C), (E); § 3553(a)(2)(B).
      Accordingly, Zelaya-Rosales’ sentence is AFFIRMED.




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