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

                                                FILED
                                                                  July 2, 2009
                                No. 08-41155
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

EDUARDO RAMIREZ-MURILLO

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 2:08-CR-411-1


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
      Eduardo Ramirez-Murillo (Ramirez) pleaded guilty to illegal reentry
following previous deportation. After imposing a six-month upward departure,
the district court sentenced Ramirez to 36 months of imprisonment. Ramirez
contends that the district court relied on improper factors to impose an upward
departure. Specifically, he contends that the district court erred in relying on
the repeat nature of his prior convictions because these convictions were already



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 08-41155

considered in the computation of his criminal history category. Ramirez also
contends that the district court erred in considering his prior arrests for rape
and assault because neither resulted in convictions. Ramirez contends that the
district court’s use of these improper factors in imposing his sentence resulted
in a sentence greater than necessary to meet the purposes of 18 U.S.C. § 3553(a).
      The district court’s decision to upwardly depart was based on the factors
set forth in § 3553(a), including Ramirez’s history and characteristics, the need
to promote respect for the law, the need for adequate deterrence, and the need
to protect the public from future crimes by Ramirez. The district court stressed
Ramirez’s accumulation of seven prior convictions for driving under the
influence (DUI). The district court also relied, in part, on Ramirez’s pending
charge for assault and battery and a prior arrest for rape. The presentence
report reflects that at the time of these offenses, like his DUI offenses, Ramirez
was intoxicated. The district court properly considered these offenses, which
supported the district court’s concern that Ramirez was going to injure someone
if he did not address his alcohol problem. See U.S.S.G. § 4A1.3(a)(2). Because
the upward departure advanced the objectives in § 3553(a) and is justified by the
facts of the case, the district court did not abuse its discretion in upwardly
departing six months from the advisory guidelines range. See United States v.
Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir. 2006). Accordingly, the judgment
of the district court is AFFIRMED.




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