     Case: 11-10836     Document: 00511819335         Page: 1     Date Filed: 04/12/2012




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

                                                                            FILED
                                                                           April 12, 2012
                                     No. 11-10836
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

LUIS BELTRAN-CERVANTES,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:11-CR-45-1


Before WIENER, GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Luis Beltran-Cervantes appeals the 24-month
sentence imposed following his guilty plea conviction for illegal reentry following
removal in violation of 8 U.S.C. § 1326(a). He contends that the district court
procedurally erred in upwardly departing from the advisory guidelines range of
6-12 months in prison and that the sentence is substantively unreasonable.
        We review the district court’s interpretation or application of the
Guidelines de novo and its factual findings for clear error. See United States v.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 11-10836   Document: 00511819335      Page: 2    Date Filed: 04/12/2012

                                  No. 11-10836

Gutierrez-Hernandez, 581 F.3d 251, 254 (5th Cir. 2009). Additionally, we review
upward departures for reasonableness, which necessitates that we review “the
district court’s decision to depart upwardly and the extent of that departure for
abuse of discretion.” United States v. Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir.
2006).
      Initially, we reject Beltran-Cervantes’s argument that the district court
misapplied the upward departure Guideline, U.S.S.G. § 4A1.3, because it stated
that his criminal history category merely “underrepresented” his risk of
recidivism instead of stating that it “substantially underrepresented” his risk of
recidivism as required by § 4A1.3(a)(1). There is no indication in the record that
the district court misunderstood the proper standard for an upward departure
under § 4A1.3 or that its statement was not merely a shorthand reference to that
standard.
      Beltran-Cervantes has not shown that the district court’s decision to
impose an above-guidelines sentence under § 4A1.3(a)(1) was procedurally or
substantively unreasonable. After considering Beltran-Cervantes’s mitigating
argument of cultural assimilation, the sentencing court cited case-specific
reasons for the upward departure, including his history of assaultive conduct,
the lack of deterrent effect from his prior lenient treatment and sentences, and
his prior uncharged offense of attempted illegal reentry into the United States.
See § 4A1.3(a)(1), (2)(E) & comment. (backg’d); Zuniga-Peralta, 442 F.3d at 347.
      As Beltran-Cervantes insists, for the first time on appeal, that the district
court could not consider his association with a gang as a basis for an upward
departure under § 4A1.3, we review that contention for plain error. To establish
plain error, a defendant must show a forfeited error that is clear or obvious and
that affects his substantial rights. Puckett v. United States, 556 U.S. 129, 135
(2009). If he makes such a showing, we have the discretion to correct the error
but only if it seriously affects the fairness, integrity, or public reputation of
judicial proceedings. Id.

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                                  No. 11-10836

      The list of categories of information regarding conduct that “may” support
a departure under § 4A1.3(a)(2) is nonexclusive, see United States v. Cantu-
Dominguez, 898 F.2d 968, 970 (5th Cir. 1990), and Beltran-Cervantes points to
no precedent prohibiting the district court from considering his association with
a gang when imposing an upward departure. Accordingly, he has not shown
error that is clear or obvious. See United States v. Valles, 484 F.3d 745, 759 (5th
Cir. 2007). Moreover, Beltran-Cervantes conceded to the district court that (1)
he was affiliated with a gang when he was a juvenile, (2) he did not expressly
deny the presentence report’s statement that he associated with members of a
different gang since becoming an adult, and (3) he has not shown that any of the
other varied bases for the district court’s upward departure were improper.
Thus, even assuming any error, he has not shown that it affected his substantial
rights. See United States v. Jones, 444 F.3d 430, 438 (5th Cir. 2006).
      Given the district court’s reasons for the departure, Beltran-Cervantes has
failed to show that the 24-month sentence constituted an abuse of discretion.
See Zuniga-Peralta, 442 F.3d at 347. In fact, we have upheld upward departures
of greater magnitude than the departure in this case. See, e.g., Jones, 444 F.3d
at 433, 442; United States v. Smith, 417 F.3d 483, 492 (5th Cir. 2005); United
States v. Daughenbaugh, 49 F.3d 171, 174 (5th Cir. 1995). Beltran-Cervantes’s
sentence is AFFIRMED.




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