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

                                                                 FILED
                                                                January 5, 2010
                               No. 09-50094
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee

v.

SEALED JUVENILE 1,

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                        USDC No. 2:08-CR-1085-ALL


Before DAVIS, STEWART and HAYNES, Circuit Judges.
PER CURIAM:*
      “Sealed Juvenile 1” (hereinafter referred to as the appellant) appeals his
sentence for juvenile delinquency, 18 U.S.C. § 5032, involving the transporting
of illegal aliens under 8 U.S.C. § 1324.     At sentencing, the district court
determined that the maximum sentence under 18 U.S.C. § 5037(c)(1) was the
maximum guideline range applicable to a similarly situated adult offender; the
applicable range was 12-18 months in prison. The district court determined,
however, that the appellant’s criminal history was underrepresented under

      *
      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should not be published and is not precedent except under the limited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.
                                   No. 09-50094

U.S.S.G. § 4A1.3(a)(1), p.s., based upon his admission that he had been arrested
on five prior occasions and on four occasions had been involved in the
transportation of illegal aliens and based upon the court’s finding beyond a
reasonable doubt that the appellant was involved in a marijuana offense for
which he had been arrested but was not convicted. The court departed upward
one criminal history level and sentenced the appellant to 21 months of detention,
at the top end of the newly applicable relevant guideline range.
      The appellant now contends that the district court erred in imposing a
sentence beyond the statutory maximum because the evidence was insufficient
to establish beyond a reasonable doubt that he knowingly participated in the
drug offense. However, the district court also relied upon the prior arrests to
which the appellant admitted in order to determine that the appellant’s criminal
history category did not represent “the likelihood that the defendant will commit
other crimes.” § 4A1.3(a)(1). The fact that the appellant had repeatedly engaged
in the transportation of illegal aliens supports the district court’s conclusion that
the appellant would reoffend. See, e.g., United States v. Simkanin, 420 F.3d 397,
419 (5th Cir. 2005)(finding no abuse of discretion in an upward departure where
the district court determined that the defendant’s likelihood to recidivate
because of his ideological beliefs was not adequately reflected by the guideline
range.”
      The appellant contends that the district court could not rely upon his prior
alien smuggling offenses for an upward departure because the number of aliens
had been included as relevant conduct and had resulted in a three-level
enhancement to the original guideline range. The presentence report imposed
the enhancement under U.S.S.G. § 2L1.1(b)(2)(A) based on a finding that the
appellant had participated in the transportation of a total of 23 illegal aliens.
However, the appellant admitted that the instant offense involved the
transportation of six aliens; this number is sufficient to warrant the three-level
increase in his offense level. Moreover, the district court found that the fact that

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the appellant had engaged in the transportation of illegal aliens on multiple
occasions made it more likely that he would engage in similar future conduct
than if he had participated in one transportation of numerous aliens. Such a
finding indicates that the serial nature of the appellant’s offenses constituted a
factor “not adequately taken into consideration” within the Guidelines. U.S.S.G.
§ 5K2.0(a)(2)(A). Therefore, the appellant has not established any error arising
from the district court’s upward departure at sentencing. The judgment of the
district court is AFFIRMED.




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