     Case: 09-41003     Document: 00511244467          Page: 1    Date Filed: 09/24/2010




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

                                                 FILED
                                                                         September 24, 2010
                                     No. 09-41003
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

ALEJANDRO VILLARREAL,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 2:08-CR-773-1


Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
        Alejandro Villarreal has appealed the sentence imposed following his
guilty plea to two counts of transporting unlawful aliens.               The district court
departed upward in sentencing Villarreal to concurrent thirty-nine month terms
of imprisonment and to concurrent three-year periods of supervised release.
        After United States v. Booker, 543 U.S. 220 (2005), “appellate review of
sentencing decisions is limited to determining whether they are ‘reasonable.’”
Gall v. United States, 552 U.S. 38, 46, 51 (2007). To the extent that Villarreal

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-41003

failed to preserve error below, this court’s review is for plain error. See United
States v. Jones, 489 F.3d 679, 681 (5th Cir. 2007).          Under that standard,
Villarreal must “show (1) there was error, (2) the error was plain, (3) the error
affected his ‘substantial rights,’ and (4) the error seriously affected ‘the fairness,
integrity or public reputation of judicial proceedings.’” Id. (quoting United States
v. Olano, 507 U.S. 725, 732, 734 (1993)).
      “If reliable information indicates that the defendant’s criminal history
category substantially under-represents the seriousness of the defendant’s
criminal history or the likelihood that the defendant will commit other crimes,
an upward departure may be warranted.” U.S.S.G. § 4A1.3(a)(1) (2008). In
considering whether to depart upward, the district court may consider, inter
alia: “Prior sentence(s) not used in computing the criminal history category”; and
“Prior similar adult criminal conduct not resulting in a criminal conviction.”
§ 4A1.3(a)(2)(A) & (E). “A prior arrest record itself shall not be considered for
purposes of an upward departure.” § 4A1.3(a)(3); see also Jones, 489 F.3d at 681
(“Consideration of prior arrests by a district court in sentencing is error.”).
      Villarreal contends that, in departing upward, the district court
improperly considered that two of the individuals he transported were juveniles.
He argues that he received a two-level upward adjustment in offense level for
transporting juveniles, and so, that fact was accounted for by the guidelines.
Villarreal has not shown that the district court plainly erred in giving additional
weight to the fact that several of the aliens were juveniles. See United States v.
Lopez-Velasquez, 526 F.3d 804, 807 (5th Cir. 2008).
      Villarreal contends that his criminal history category, level IV, did not
understate the seriousness of his criminal history because many of the offenses
considered by the district court were considered in determining the criminal
history category. With respect to arrests that did not result in convictions,
Villarreal argues, one resulted in acquittal and the others were dismissed with



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                                 No. 09-41003

no reason noted. For that reason, he asserts, the evidence regarding those
offenses was unreliable.
      Although Villarreal did not object to the upward departure, he did argue
in the district court that his prior arrests not resulting in convictions should not
be considered. Thus, any error on the part of the district court in considering the
prior arrests has been reviewed for harmless error. See Jones, 489 F.3d at 681.
      In imposing the upward departure, the district court specifically
mentioned Villarreal’s unscored conviction of going armed with intent and the
fact that Villarreal had threatened to kill a woman and two children in that
offense.   Villarreal has not shown that the district court plainly erred in
considering this offense and Villarreal’s long history of violent behavior as a
basis for departing upward from the guidelines range under § 4A1.3(a)(2)(A).
See id. at 681-82; see also United States v. Pennington, 9 F.3d 1116, 1118 (5th
Cir. 1993). Because those factors were properly considered and adequately
supported the upward departure, any error in considering the arrests not
resulting in a conviction was harmless. See Jones, 489 F.3d at 681.
      Villarreal has not briefed any issue with respect to the district court’s
failure to explain the extent of the upward departure or the substantive
reasonableness of the sentence. Issues not briefed on appeal are waived. See
United States v. Waldrop, 404 F.3d 365, 368 n.1 (5th Cir. 2005); United States
v. Narviz-Guerra, 148 F.3d 530, 537-38 (5th Cir. 1998). The judgment is
      AFFIRMED.




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