           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                    United States Court of Appeals
                                                                             Fifth Circuit
                                                                          F I L E D
                                       No. 06-20532                      September 26, 2007

                                                                       Charles R. Fulbruge III
                                                                               Clerk
UNITED STATES

                                                  Plaintiff-Appellee
v.

FRANCIS A. FUNES

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                           USDC No. 4:05-CR-460-ALL


Before JOLLY, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       Francis Funes appeals his sentence for using a passport that was secured
by means of a false statement, in violation of 18 U.S.C. § 1542. For the following
reasons, we affirm.
                          I. FACTS AND PROCEEDINGS
A.     The charged conduct and plea
       On March 1, 2005, Francis Funes was charged in a two-count indictment
with (1) using a passport that had been secured by his false statements, in


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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violation of 18 U.S.C. § 1542; and (2) using a passport issued for the use of
another, in violation of 18 U.S.C. § 1544. Funes pleaded guilty to the first count,
without a plea agreement, on March 3, 2006. The government moved to dismiss
the second count, and the district court granted the motion.
      At his rearraignment, Funes admitted to the following factual basis.
Funes, a citizen of El Salvador, was stopped by Houston police officers on a
Texas warrant for sexual assault of a child. Funes presented a Honduran
driver’s license and a Honduran passport, both of which indicated that he was
Rudi Renan Amador Martinez, to the police officers.           Funes was also in
possession of a Honduran General Consulate card, a Bank of America VISA card,
a Sam’s Club card, and a Tool Club card, all of which were issued in the name
of Rudi Renan Amador Martinez. Honduran immigration authorities later
reported that the passport was issued to Funes by the Honduran Consulate in
Houston on the basis of Funes’s false claim that he was a Honduran citizen
named Rudi Renan Amador Martinez.            Interviews with Martinez’s family
members revealed that the photo on the passport Funes used was not a photo of
their relative. Funes obtained the passport by pretending to be Martinez. The
court accepted Funes’s guilty plea and ordered that a pre-sentence report
(“PSR”) be prepared.
B.    The pre-sentence hearing
      On May 26, 2006, which was to be the date of Funes’s sentencing hearing,
the district court announced that it intended to make an upward departure from
the guidelines and offered the parties additional time to prepare. Funes asked
for additional time and asked the district court “if there [were] specific issues
that [he] should be prepared to respond to.” The district court refused to
specifically detail how it intended to depart but stated that it would look at
Funes’s history and characteristics; his criminal history, as indicated by the
PSR, particularly “uncharged offenses”; the circumstances surrounding his


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commission of the offense, in particular Funes’s immigration status; and the fact
that Funes “had other materials on him at the time . . . all the markings of
identity theft for other purposes well beyond just the offense of the conviction.”
The district court specifically indicated its concern that “the advisory guidelines
are inadequate to reflect the purposes set forth in [18 U.S.C. §] 3553(a)(2).”
C.     The PSR
       The probation office included a number of facts about Funes that did not
affect its guideline calculation in the PSR. Though the PSR assigned Funes zero
criminal history points, putting him in category I, it noted two incidents that did
not lead to a conviction. In 2002, a woman contacted the Houston Police
Department (“HPD”) to report that her 14-year-old daughter had been having
consensual sex with Funes, who was then 22. The victim reported that she ran
away from home and stayed at Funes’s apartment for eight days. The victim
admitted that she had intercourse with Funes on five occasions during that time,
and that he told her not to tell anyone. Upon an investigation that revealed
“sufficient indicia of reliability,” Funes was charged with the equivalent of
statutory rape, a strict liability crime. The case was ultimately dismissed in
2006, but only at the request of the victim, who had turned eighteen.
       Further, when another former girlfriend of Funes’s was arrested for
shoplifting, she told officers of the HPD that Funes “was deeply involved in an
elaborate theft ring and had recruited her.” Funes was never charged with any
offense related to this report.
       At the time Funes was arrested, “HPD officers had uncorroborated
information about Funes having ties to the Mara Salvatrucha (MS-13) gang and
he was wanted for questioning in connection with an aggravated robbery.” No
further information about Funes’s alleged membership in MS-13 appears in the
PSR.



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       Funes received temporary protected status (“TPS”) when he arrived in the
United States on January 14, 2002, and he received two extensions of this
status, which expired on March 9, 2005. A detainer has been filed against Funes
by Immigration and Customs Enforcement officials.
       Funes’s financial condition, as described in the PSR, was as follows. Funes
reported that he had been employed as an apartment repairman by a
management company, IMT, since 2000. He allegedly earned $450 per week for
this work, though the probation office was unable to verify the existence of the
company.      Funes also claimed sporadic work as a laborer and that he
occasionally bought and sold cars at auction. Despite his limited income, Funes
reported that he had a checking account with a balance of $7,000 and a savings
account with a balance of $3,000. He also stated that he owned two vehicles,
debt-free, with a combined value of $22,000. A credit report revealed no open or
active accounts in his name.
       After subtracting two levels for acceptance of responsibility, with a total
offense level of 6 and a criminal history category of I, the guideline range for
imprisonment would be 0 to 6 months.** Prior to the sentencing hearing, neither
party indicated that there were any grounds for departure.
D.     The upward departure
       The government moved for an upward departure from the sentencing
guidelines. The government urged the district court to upwardly depart because
(1) a criminal history category of I did not adequately reflect the seriousness of
Funes’s criminal activities and the likelihood that he would commit further
crimes; and (2) the history and characteristics of Funes, as well as the
circumstances of the offense, indicated that a longer sentence was necessary to
prevent further crimes. Funes argued in response that no reliable information


       **
        Funes acknowledged his responsibility in a signed statement to the probation office,
which admitted that he “went to the Honduran Consulate with false license.”

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indicated that his criminal history was substantially underrepresented and that
any alleged conduct was not serious enough to justify an upward departure.
      At sentencing, the district court announced that the aggravating
circumstances surrounding Funes’s offense removed it from the heartland of
similar offenses addressed by U.S.S.G. § 2L2.2, meriting an upward departure.
Specifically, the district court found “from a preponderance of the evidence . . .
that [Funes] committed additional crimes for which he was not charged and did
not proceed to trial.”   It also found that a criminal history category of I
“significantly underrepresents the seriousness of the defendant’s criminal
history and the likelihood that he will commit future crimes.” The district court
noted that Funes had an outstanding warrant for sexual assault of a child at the
time he was arrested and that he attempted to conceal his identity from police
when he was stopped. These factors justified a four-level upward departure
pursuant to U.S.S.G. § 5K2.0. The court then added eight levels of departure
because it found that the additional forms of false identification Funes possessed
at the time he was arrested “constitute[d] uncharged criminal conduct, namely,
identity fraud, and, it appears, bank fraud.”
      The district court found that the charge of sexual assault of a child, which
was ultimately dismissed, as well as Funes’s use of multiple aliases, the
allegation that he was involved in a “theft ring,” his unverified employment
history, and the substantial assets he owned despite a reportedly meager
income, combined with his illegal status in the United States and the risk that
he might return to the United States following deportation, indicated that his
criminal history category should be III instead of I. The criminal history
category of III, combined with his enhanced offense level of 18, yielded a
guideline range of 33 to 41 months. The district court sentenced Funes to 36
months of imprisonment and stated that even if its application of the guidelines



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were in error, it would have found that a variance from the guidelines was
warranted to accomplish the purposes of 18 U.S.C. § 3553(a).


                         II. STANDARD OF REVIEW
      All post-Booker sentences are ultimately reviewed for reasonableness.
United States v. Smith, 440 F.3d 704, 706 (5th Cir. 2006). Following Booker,
three different types of sentences are possible under the sentencing guidelines:
(1) a sentence within a properly calculated guideline range; (2) a sentence that
includes a departure allowed under the guidelines; and (3) a non-guidelines
sentence that is either higher or lower than the relevant guideline sentence. Id.
at 706–07. The last sentencing option is also known as a variance from the
guidelines. United States v. Mejia-Huerta, 480 F.3d 713, 723 (5th Cir. 2007).
Before imposing a variance, “the sentencing court must calculate the correct
Guidelines range, consider it as advisory, and use it as a frame of reference.” Id.
at 721.
      “Both a district court’s post- Booker sentencing discretion and the
reasonableness inquiry on appeal must be guided by the sentencing
considerations set forth in 18 U.S.C. § 3553(a).” Smith, 440 F.3d at 706.
      [T]he district court must more thoroughly articulate its reasons
      when it imposes a non-Guideline sentence than when it imposes a
      sentence under authority of the Sentencing Guidelines. These
      reasons should be fact-specific and consistent with the sentencing
      factors enumerated in section 3553(a). The farther a sentence varies
      from the applicable Guideline sentence, the more compelling the
      justification based on factors in section 3553(a) must be. The court,
      however, need not engage in robotic incantations that each statutory
      factor has been considered. . . . The purpose of the district court’s
      statement of reasons is to enable the reviewing court to determine
      whether, as a matter of substance, the sentencing factors in section
      3553(a) support the sentence. . . . A non-Guideline sentence
      unreasonably fails to reflect the statutory sentencing factors where
      it (1) does not account for a factor that should have received


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       significant weight, (2) gives significant weight to an irrelevant or
       improper factor, or (3) represents a clear error of judgment in
       balancing the sentencing factors.

Id. at 707–08 (internal citation and quotation omitted). “Where, as here, a
district court imposes a post- Booker, non-Guideline sentence . . . we conduct our
reasonableness review through an abuse-of-discretion lens, paying particular
attention to the specific reasons given for deviating from the Guidelines.” United
States v. Armendariz, 451 F.3d 352, 358 (5th Cir. 2006).
                                     III. ANALYSIS
A.     Notice of grounds for sentencing
       Funes contends that the district court erred by failing to give him
sufficient notice of the grounds for its intention to depart upward from the
guidelines. See FED. R. CRIM. P. 32(h) (“Before the court may depart from the
applicable sentencing range on a ground not [previously] identified for departure
. . . the court must give the parties reasonable notice that it is contemplating
such a departure. The notice must specify any ground on which the court is
contemplating a departure.”).
       The record shows that Funes did, in fact, receive notice of the district
court’s intent to impose a variance from the sentencing guidelines.                    After
calculating the correct Guidelines range, the district court indicated at the pre-
sentencing hearing its belief that the recommended Guidelines sentencing range
was inadequate, and that it would impose a variance. The government moved
for an upward departure and the defendant timely responded to the motion.
Therefore, Funes’ sentence may not be vacated for lack of notice regarding the
upward departure.***


       ***
          We note, however, that although Funes received adequate notice, he was, in fact, not
entitled to any notice regarding the possible grounds for a variance from the sentencing
guidelines. See Mejia-Huerta, 480 F.3d at 723–24. (“If we were to conclude that the advance
notice requirement of Rule 32(h) applies to non-Guidelines sentences, we would re-elevate the

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       B.     Improper consideration of dismissed charge
       Funes asserts that the district court erred by considering his dismissed
charge for sexual assault of a minor in its sentencing determination. The
guidelines explicitly prohibit consideration of a prior arrest followed by
dismissed charges to support an upward departure, without further evidence
that a crime was in fact committed. See United States v. Jones (Jones I), 444
F.3d 430, 434 (5th Cir. 2006). This is because “[a]rrests, standing alone, do not
constitute reliable information” of prior criminal conduct. Id. However, a district
court may make a finding that the defendant actually committed the offense for
which he was arrested; this is a proper consideration if the finding is supported
by the evidence before the district court. Jones I, 444 F.3d at 434; United States
v. Jones (Jones II), __ F. 3d __, 2007 WL 1723306, at *2 (5th Cir. June 15, 2007).
Here, the district court made these findings. At no time did Funes assent to the
crimes charged. At sentencing, however, the district court noted that, although
the charges did not result in a conviction, “there have been no denials of the
factual accuracy of the information set forth in the PSR, rather the defendant is
only challenging it for a lack of corroboration.” The district court went on to
directly state that Funes “committed the offense that led to the charges against
him for sexual assault of a minor;” the district court thus found that Funes
committed the crime based on the reliable indicia surrounding the charge, the
indictment, and the ultimate dismissal.               “[T]he district court could have
considered those facts in determining the likelihood that [Funes] would commit
crimes in the future.” Jones I, 444 F.3d at 434. The district court did not err by
considering the facts that it found with regard to this offense.


Guidelines to a position it no longer enjoys. Thus, we conclude that sentencing courts are not
required to give pre-sentencing notice of their sua sponte intention to impose a non-Guidelines
sentence, regardless of the pre-Booker pronouncements of [United States v. Burns, 501 U.S. 129
(1991)] and Rule 32(h).”).


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C.    Failure to consider disparity
      Funes asserts that the district court erred by failing to consider the
sentencing disparity resulting from its choice to depart from the guidelines
range. If “[t]he district court relie[s] on significant factors not accounted for by
[the defendant’s] Guideline range[,] . . . the imposed sentence does not produce
an unwarranted disparity.” Smith, 440 F.3d at 709. Here, the district court
relied on a number of factors not taken into account by Funes’s guideline range,
including his criminal history, elements of the offense indicating a likelihood of
future criminal conduct, and the risk that he would illegally reenter following
deportation. The district court did not err by failing to explicitly state that it
had taken sentencing disparities into account.
D.    Undue weight to false documents
      Funes contends that the district court erred by considering his possession
of multiple documents in the name of Martinez. The district court found at
sentencing that Funes’s possession of the documents, including a bank credit
card, “constitute[d] uncharged criminal conduct, namely identity fraud and, it
appears, bank fraud.” On this basis, the district court upwardly departed by
eight levels.
      Funes points out that the facts found by the district court would not be
sufficient to sustain a conviction for the federal offenses of identity theft or credit
card fraud. See 18 U.S.C. §§ 1028, 1029. The government does not contest this
argument, but it contends that Funes’s possession of the additional identification
was consistent with the other evidence of his multiple aliases, unexplained
assets, and an allegation by an ex-girlfriend of his participation in a theft ring,
and generally indicated an ongoing pattern of criminal activity. Consideration
of this material was not improper, since it related to the “nature and
circumstances of the offense” as well as the need for the sentence “to afford
adequate deterrence” and “to protect the public from further crimes,” all of which

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were cited by the district court in its explanation of why a variance would be
warranted. See 18 U.S.C. § 3553(a).




                             IV. CONCLUSION
      Because the district court’s sentence, imposed as a variance from the
sentencing guidelines, was reasonable in light of its findings and the factors
listed in 18 U.S.C. § 3553(a), we AFFIRM the judgment of the district court.




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