     Case: 12-20643       Document: 00512330094         Page: 1     Date Filed: 08/02/2013




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

                                                                            FILED
                                                                           August 2, 2013
                                     No. 12-20643
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

VICTOR DECASTRO-RODRIGUEZ, also known as Victor Rodriguez Decastro,
also known as Victor Decastro Rodriguez, also known as Victor R. Decastro, also
known as Victor R. Decastro-Sanchez, also known as Victor Rodriguez
Decastro-Sanchez,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:12-CR-330-1


Before BENAVIDES, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       Victor DeCastro-Rodriguez appeals the 36-month sentence he received for
illegal reentry after deportation. He asserts that the district court procedurally
erred in upwardly departing under U.S.S.G. § 4A1.3(a) from the guidelines range
of 24 to 30 months with an offense level of 10 and a criminal history category 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    Case: 12-20643     Document: 00512330094     Page: 2   Date Filed: 08/02/2013

                                  No. 12-20643

VI to a sentence commensurate with an offense level of 12 and a criminal history
of VI, without explaining why it rejected the intermediate offense level.
      We review the issue for plain error. See Puckett v. United States, 556 U.S.
129, 134-35 (2009). Although DeCastro-Rodriguez objected that his sentence
was procedurally and substantively unreasonable, he did not specifically address
the district court’s reliance on § 4A1.3, its conclusion that his criminal history
was under-represented, or its lack of explanation of why it rejected an
intermediate offense level in arriving at the sentence.
      The district court’s failure to address the intermediate criminal history
category was not a clear or obvious error. See Puckett, 556 U.S. at 135. It is
apparent from the district court’s reasons that it imposed the 36-month sentence
based on DeCastro-Rodriguez’s criminal background. The district court noted
the number of offenses within a period of approximately 14 years and the
repetition of certain offenses such as burglary and narcotics, as well as the fact
that DeCastro-Rodriguez had reached the highest criminal history category by
age 27 even though no criminal history points were awarded for his juvenile
convictions. See United States v. Ashburn, 38 F.3d 803, 809-10 (5th Cir. 1994)
(en banc). Further, the district court’s departure to a 36-month sentence, six
months above the top of the advisory guidelines range, fell shy of the sort of
departure for which this court has required an explicit statement of reasons for
rejecting each intermediate increase. See id. at 809-10. Accordingly, we find no
plain error.
      AFFIRMED.




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