     Case: 11-11197       Document: 00512100071         Page: 1     Date Filed: 01/03/2013




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

                                                                            FILED
                                                                          January 3, 2013
                                     No. 11-11197
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ROGELIO TREJO-MUNOZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 7:11-CR-5-1


Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Rogelio Trejo-Munoz (“Trejo-Munoz”) appeals the
84-month sentence imposed following his guilty plea conviction for illegal reentry
following deportation, in violation of 8 U.S.C. § 1326(a). He contends that the
district court’s upward departure from the advisory Guidelines range of 24 to 30
months imprisonment was procedurally and substantively unreasonable.
       The Guidelines authorize an upward departure “[i]f reliable information
indicates that the defendant’s criminal history category substantially

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 11-11197

under-represents the seriousness of the defendant’s criminal history or the
likelihood that the defendant will commit other crimes.” U.S.S.G. § 4A1.3(a)(1).
An upward departure predicated on § 4A1.3 may be warranted if (1) prior
sentences were not used in computing the criminal history category, (2) prior
sentences of substantially more than one year were imposed as a result of
independent crimes committed on different occasions, (3) prior similar
misconduct was established by a failure to comply with an administrative order,
(4) at the time of his arrest, the defendant was facing trial or sentencing on
another charge, or (5) the defendant committed prior similar adult criminal
conduct which did not result in a criminal conviction. §4A1.3(a)(2)(A)–(E).
      In this case, the district court ruled that an upward departure was
warranted in part because Trejo-Munoz (1) did not receive any criminal history
points for 10 other guilty plea convictions, including one illegal entry conviction
and five driving while intoxicated (“DWI”) convictions, (2) was facing pending
charges in Oklahoma, and (3) reentered the United States after deportation on
five times. In light of that information, the district court concluded that Trejo-
Munoz’s criminal history category substantially underrepresented the serious
of his criminal history. After considering the 18 U.S.C. § 3553(a) factors, the
district court sentenced Trejo-Munoz to 84 months imprisonment, reasoning that
the sentence was sufficient, but not greater than necessary, to counteract Trejo-
Munoz’s “profound disrespect for the rule of law,” protect the public, and deter
him from committing crimes in the future.
      1.    Procedural Reasonableness
      According to Trejo-Munoz, the district court committed procedural error
by “elid[ing] past” intermediate offense levels and Guidelines ranges before
deciding on the sentence imposed, in violation of Guidelines § 4A1.3(a)(4)(B) and
United States v. Lambert, 984 F.2d 658, 662-63 (5th Cir. 1993) (en banc)
(explaining that when a district court intends to depart above criminal history



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                                   No. 11-11197

category VI, it should consider each intermediate criminal history category and
explain why the category chosen and sentence imposed is appropriate).
      The district court stated on the record that it considered each intermediate
criminal history category before deciding upon the sentence, noting that it
“moved incrementally down the criminal history table.” The court also explained
on the record that it found an upward departure warranted and the intermediate
categories and levels insufficient because of Trejo-Munoz’s continuing criminal
activity, much of which was unscored, as well as his disregard of criminal laws
and immigration procedures. Lambert does not require more. See id. at 663 (“We
do not, however, require the district court to go through a ritualistic exercise in
which it mechanically discusses each criminal history category it rejects en route
to the category that it selects. Ordinarily the district court’s reasons for rejecting
intermediate categories will clearly be implicit, if not explicit, in the court’s
explanation for its departure from the category calculated under the guidelines
and its explanation for the category it has chosen as appropriate.”); see also
United States v. Ashburn, 38 F.3d 803, 809 (5th Cir. 1994) (en banc) (affirming
significant departure where only implicit consideration was given to each
intermediate criminal history category). Moreover, had there been procedural
error, it would have been harmless because the district court stated that it would
have imposed the sentence based on the § 3553(a) factors alone. See United
States v. Mejia-Huerta, 480 F.3d 713, 723 (5th Cir. 2007) (holding that because
the district court’s decision to impose a non-Guidelines sentence was based in
part on its consideration of the § 3553(a) factors, any error in its application of
§ 4A1.3 was harmless).
      2.     Substantive Reasonableness
      Trejo-Munoz argues that his 84-month sentence is substantively
unreasonable because he presents a low risk of recidivism and shows “great
promise.” The district court concluded, and we agree, that Trejo-Munoz’s
extensive criminal history, including eleven convictions for driving while

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                                 No. 11-11197

intoxicated and numerous other convictions for evading arrest and illegal
reentry, portended more recidivism, not “great promise.” See United States v.
Delgado-Nunez, 295 F.3d 494, 498 (5th Cir. 2002) (holding that “it was certainly
not unreasonable for the court to conclude” that the exclusion of three DWI
convictions from the criminal history calculation resulted in a criminal history
level that underestimated of the seriousness of the defendant’s past criminal
conduct). The court carefully considered the § 3553(a) factors in imposing the
sentence, and we decline the invitation to re-weigh them now. Gall v. United
States, 552 U.S. 38, 50 (2007). Moreover, the 84-month sentence, while above
the Guidelines range, is well below the statutory maximum and within the range
of variances and departures this court has upheld as substantively reasonable.
See, e.g., United States v. Smith, 417 F.3d 483, 492 (5th Cir. 2005) (upholding
sentence of 120 months where high end of Guidelines range was 41 months);
United States v. Daughenbaugh, 49 F.3d 171, 174-75 (5th Cir. 1995) (upholding
sentence of 240 months where high end of Guidelines range was 71 months);
United States v. Rosogie, 21 F.3d 632, 633-34 (5th Cir.1994) (upholding sentence
of 150 months where high end of Guidelines range was 37 months).
      For all of those reasons, we AFFIRM.




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