     Case: 09-10708     Document: 00511207251          Page: 1    Date Filed: 08/18/2010




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

                                                  FILED
                                                                           August 18, 2010
                                     No. 09-10708
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

RUBEN GUAJARDO, also known as Guerro G.,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 4:08-CR-98-11


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Ruben Guajardo appeals the sentence imposed
following his guilty plea conviction for conspiracy to possess with intent to
distribute Schedule II controlled substances (more than 5 kilograms of cocaine
and 500 grams of a mixture of methamphetamine), in violation of 21 U.S.C. §§
841 and 846.1 Guajardo was sentenced to the mandatory minimum sentence of


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
       1
         On appeal, Guajardo does not raise any issues concerning the sentences imposed for
his guilty plea convictions for three counts of unlawful use of a communication facility to
   Case: 09-10708           Document: 00511207251 Page: 2   Date Filed: 08/18/2010
                                        No. 09-10708

10 years under 21. U.S.C. § 841(b)(1)(A). After imposing that penalty, the
district court stated that, even if the 10-year minimum penalty were not
applicable, it would have imposed the same term of imprisonment.
       Guajardo first contends that the district court erred by finding the 10-year
mandatory minimum penalty of § 841(b)(1)(A) applicable. Guajardo is correct.
For sentencing purposes, a defendant is accountable only for the drug quantity
“with which he was directly involved, and all reasonably foreseeable quantities
of marijuana” within the scope of the joint criminal activity. See U.S.S.G.
§ 1B1.3, comment. (n.2). The presentence report, which was adopted by the
district court, determined that the drug quantity attributable to Guajardo was
the equivalent of 300.51 kilograms of marijuana. That is less than the threshold
quantity (1,000 kilograms of marijuana) necessary for triggering the 10-year
statutory minimum penalty. Thus, the 10-year mandatory minimum penalty of
§ 841(b)(1)(A) was not applicable. See id.
       Guajardo next insists that the district court’s alternative upward
departure sentence of 120 months of imprisonment pursuant to U.S.S.G. § 4A1.3
is unreasonable. Although sentencing decisions are generally reviewed for abuse
of discretion, see Gall v. United States, 128 S. Ct. 586, 594-96 (2007), plain error
review applies here because Guajardo did not preserve this issue for appeal.
United States v. Whitelaw, 580 F.3d 256, 259-60 (5th Cir. 2009) (citing United
States v. Hernandez-Martinez, 485 F.3d 270, 272-73 & n.1 (5th Cir. 2007); United
States v. Peltier, 505 F.3d 289, 390-92 (5th Cir. 2007)).
       To succeed on plain error review, Guajardo must show a forfeited error
that is clear or obvious and that affects his substantial rights. Puckett v. United
States, 129 S. Ct. 1423, 1429 (2009). Then, if Guajardo succeeds in making such
a showing, we only have the discretion to correct the error if it seriously affects
the fairness, integrity, or public reputation of judicial proceedings. Id.



facilitate a drug felony.

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                                 No. 09-10708

      Guajardo has not shown that the district court clearly erred when deciding
to upwardly depart pursuant to § 4A1.3. After reviewing Guajardo’s criminal
history and considering an advisory sentencing guidelines range of 84 to 105
months of imprisonment, the district court stated that an upward departure
under § 4A1.3 was necessary because of the “inadequacy” of Guajardo’s criminal
history category of IV and Guajardo’s history of violence. The district court also
stated that a sentence of 120 months of imprisonment was the most appropriate
and reasonable sentence in Guajardo’s case and was “necessary to achieve the
Court’s sentencing objectives of punishment, deterrence, and protection of the
public.” Given Guajardo’s long and violent criminal history, the district court did
clearly err when it made an upward departure pursuant to § 4A1.3. See United
States v. Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir.2006).
      Neither has Guajardo shown that the district court erred in determining
the extent of the departure. Following the direction of § 4A1.3(a)(4)(A), the
district court moved incrementally across the sentencing table to the next higher
criminal history category of V, which has an advisory sentencing guidelines
range of 100 to 125 months of imprisonment.         The district court imposed a
sentence of 120 months of imprisonment, within category V’s range and 15
months greater than the high-end of the guidelines sentence range applicable in
the absence of the upward departure. U.S.S.G., Ch. 5, Pt. A, Sentencing Table.
Given Guajardo’s extensive and violent criminal record, he has not shown that
the extent of the departure was clearly erroneous or that the sentence was
unreasonable. See Zuniga-Peralta, 442 F.3d at 346-48; United States v. Lee, 358
F.3d 315, 328-29 (5th Cir. 2004); United States v. McKenzie, 991 F.2d 203, 205
n.7, 206 n.8 (5th Cir. 1993).
      Furthermore, Guajardo’s assertion that the district court improperly
relied on factors already incorporated by the Guidelines is meritless.         The
district court is “free to conclude that the applicable Guidelines range gives too
much or too little weight to one or more factors, either as applied in a particular

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                                 No. 09-10708

case or as a matter of policy.” United States v. Williams, 517 F.3d 801, 809 (5th
Cir. 2008); United States v. Brantley, 537 F.3d 347, 350 (5th Cir. 2008).
      Moreover, Guajardo’s claim that some of his prior convictions were double
counted, also meritless. See United States v. Mondragon-Santiago, 564 F.3d 357,
366-67 (5th Cir. 2009); United States v. Campos-Maldonado, 531 F.3d 337 (5th
Cir. 2008); United States v. Calbat, 266 F.3d 358, 364 (5th Cir. 2001) (noting that
double-counting is not generally prohibited but must be expressly forbidden by
the particular guideline at issue).
      AFFIRMED.




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