                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 01-2447
                                    ___________

United States of America,                  *
                                           *
             Appellee,                     *
                                           *   Appeal from the United States
      v.                                   *   District Court for the
                                           *   Western District of Missouri.
Gabino Garduno-Bustos,                     *
                                           *         [UNPUBLISHED]
             Appellant.                    *

                                    ___________

                            Submitted: December 11, 2001

                                Filed: March 14, 2002
                                    ___________

Before MORRIS SHEPPARD ARNOLD, BEAM, and RILEY, Circuit Judges.

                                    ___________

PER CURIAM.

       Gabino Garduno-Bustos (Garduno-Bustos) appeals the district court's1 decision
to depart upward from his sentencing guidelines range. Garduno-Bustos argues the
district court abused its discretion because it did not express the factual findings and



      1
      The Honorable Dean Whipple, Chief Judge, United States District Court for
the Western District of Missouri.
legal analysis required for a departure above a category VI criminal history. We
affirm the sentence of the district court.

        Garduno-Bustos is a Mexican citizen born on December 9, 1967, and is neither
a citizen nor a national of the United States. Garduno-Bustos pled guilty to reentering
the United States illegally after deportation in violation of 8 U.S.C. § 1326(a) and
(b)(1), after he was found in Taney County, Missouri, on April 5, 2000. He had
entered the United States in approximately July of 1996, by jumping a border fence
near El Paso, Texas. In sentencing Garduno-Bustos, the district court found his total
offense level was 10, his criminal history category was VI, and the sentencing range
was therefore 24 to 30 months. The district court departed upward to 48 months
based upon Garduno-Bustos's criminal history and risk of recidivism under U.S.S.G.
§ 4A1.3.

       We review the district court's decision to depart upward from the guidelines
range for an abuse of discretion. United States v. Levi, 229 F.3d 677, 679 (8th Cir.
2000). Section 4A1.3 of the sentencing guidelines permits a sentencing court to
depart upward "[i]f reliable information indicates that the criminal history category
does not adequately reflect the seriousness of the defendant's past criminal conduct
or the likelihood that the defendant will commit other crimes." In determining
whether a departure above criminal history category VI is warranted, "the court
should consider that the nature of the prior offenses rather than simply their number
is often more indicative of the seriousness of the defendant's criminal record." Id.
At the time of both Garduno-Busto's conviction and sentencing, Application Note 3
to U.S.S.G. § 2L1.2 recommended "[i]n the case of a defendant with repeated prior
instances of deportation, an upward departure may be warranted."2



      2
       This application note was omitted from the amended version of § 2L1.2 which
went into effect on November 1, 2001.

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       Before his 1996 border crossing, Garduno-Bustos had illegally entered the
United States multiple times and was repeatedly returned to Mexico. Immigration
and Naturalization Services records show that Garduno-Bustos "was voluntarily
returned" to Mexico in March 1990, August 1990, and October 1991. Garduno-
Bustos was arrested and deported in May 1992, September 1992, and November
1994. Garduno-Bustos has never applied for lawful admission into the United States.
In 1993, he was convicted in the United States District Court for the Western District
of Texas under 8 U.S.C. § 1326 for being illegally found in the United States. The
district court in Texas departed upward and sentenced Garduno-Bustos to two years
for that offense. In the present case, the computation of Garduno-Bustos's criminal
history category under the guidelines only takes into account his two most recent
illegal entries into the United States and not the earlier four.

       In addition to his 1993 conviction, Garduno-Bustos has sustained eighteen
other criminal convictions and multiple other arrests while in the United States, many
related to intoxication. At least three of those convictions involved violence directed
at a woman. Garduno-Bustos did not receive criminal history points for three of those
convictions here because they were covered by U.S.S.G. § 4A1.1(c) which limits the
number of points to four that may be counted.

       In deciding to depart upward, the district court reasoned that Garduno-Bustos's
criminal history was not adequately reflected in a criminal history category of VI and
furthermore that "his prospects of recidivism are high." The district court specifically
based its decision to depart upward on the fact that this arrest was a "repeat offense"
and criminal history category VI "does not sufficiently represent the chance of
recidivism by this defendant." The district court further based its decision to depart
upward on the fact that Garduno-Bustos's criminal history category did not fully take
into account the nature and number of offenses he committed while in the United
States. The district court informed the defendant at sentencing, "it would be one
thing if you are just here illegally, but you commit crime after crime. You are into

                                          -3-
felonious assault, you love to beat up women." The district court's comments at
sentencing and the written judgment both explain "the criminal history category even
at 6 does not sufficiently represent the chance of recidivism" given Garduno-Bustos's
prior deportations, offenses, and assaults upon women.

       Garduno-Bustos argues under United States v. Day, 998 F.2d 622, 625 (8th Cir.
1993), the district court was required to engage in a comparison between his criminal
history and the criminal histories of offenders in higher categories before reaching the
determination that category VI was inadequate. We do not overlook our conclusion
in Day that, "[n]either the text of § 4A1.3 nor our precedents require a 'ritualistic
exercise in which [the sentencing court] mechanically discusses each criminal history
category it rejects en route to the category that it selects.'" Id. (quoting United States
v. Lambert, 984 F.2d 658, 663 (5th Cir. 1993) (en banc)); see also Levi, 229 F.3d at
679. The district court adequately explained why category VI under-represented
Garduno-Bustos's criminal history and likelihood of committing further crimes.

       Furthermore, in imposing a four-year sentence, the district court reasonably
considered that in 1993 the Texas district court sentenced Garduno-Bustos to two
years of imprisonment for an identical offense, and upon his release, Garduno-Bustos
again committed the same offense. We find no abuse of discretion in the district
court's conclusion that Garduno-Bustos's criminal history, even at a category VI, did
not adequately represent the seriousness of his criminal history and his high risk of
recidivism.

      We thus affirm the sentence of the district court.




                                           -4-
A true copy.

      Attest:

         CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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