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

                                                 FILED
                                                                            April 16, 2009
                                     No. 08-40414
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee

v.

ISMAEL VALADEZ-SALINAS, also known as Juan Valadez-Carmona,
also known as Jose Luis Rangel-Hernandez

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                          USDC No. 7:07-CR-1247-ALL


Before JONES, Chief Judge, and DENNIS and HAYNES, Circuit Judges.
PER CURIAM:*
       Ismael Valadez-Salinas appeals his 30-month sentence for being found
illegally in the United States following previous deportation in violation of
8 U.S.C. § 1326. He argues that the district court erred in basing a four-level
upward departure, in part, upon his October 2007 arrest for possession of 159
pounds of marijuana (2007 possession arrest).




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                   No. 08-40414

      An appellate court’s review of a sentence must start with the issue
whether the district court committed any “significant procedural error, such as
failing to calculate (or improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors,
selecting a sentence based on clearly erroneous facts, or failing to adequately
explain the chosen sentence.” Gall v. United States, 128 S. Ct. 586, 597 (2007).
If the sentencing decision is procedurally sound, the appellate court then
considers “the substantive reasonableness of the sentence imposed under an
abuse-of-discretion standard.” United States v. Cisneros-Gutierrez, 517 F.3d 751,
764 (5th Cir. 2008).
      This court recognizes three types of sentences: (1) a sentence within the
guidelines range, (2) an upward departure or downward departure provided for
by the Guidelines, and (3) a non-guidelines sentence, or variance, that is outside
the guidelines range. United States v. Smith, 440 F.3d 704, 706-07 (5th Cir.
2006). In the instant case, the district court specifically noted that it was
imposing an upward departure pursuant to U.S.S.G. § 5K2.0(a)(3). The instant
case thus involves a departure pursuant to the Guidelines.
      Reasonableness review, in the context of a guidelines departure, requires
this court to evaluate both “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) (internal quotation marks and
citation omitted). However, when, as here, a defendant fails to object to the
reasonableness of the sentence imposed in the district court, review is for plain
error. See United States v. Rodriguez-Rodriguez, 530 F.3d 381, 387-88 (5th Cir.
2008). To show plain error, the appellant must show an error that is clear or
obvious and that affects his substantial rights. United States v. Baker, 538 F.3d
324, 332 (5th Cir. 2008), cert. denied, 2009 WL 56591 (Jan. 12, 2000) (No. 08-
7559). If the appellant makes such a showing, this court has the discretion to
correct the error but only if it seriously affects the fairness, integrity, or public

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reputation of judicial proceedings.     Id.   When the district court imposes a
guidelines sentence, including a sentence with a departure pursuant to the
Guidelines, this court infers that the district court has considered all the factors
necessary under the Guidelines for a fair sentence and will rarely say that such
a sentence is unreasonable. United States v. Rajwani, 476 F.3d 243, 249 (5th
Cir.), modified on other grounds, 479 F.3d 904 (5th Cir. 2007).
       A district court incorrectly applies the Guidelines by basing a departure
upon a factor that the Sentencing Commission has expressly rejected as an
appropriate ground for departure. Williams v. United States, 503 U.S. 193, 200
(1992). Section 4A1.3(a)(3), p.s., provides that a “prior arrest record itself shall
not be considered for purposes of an upward departure.” In United States v.
Jones, 444 F.3d 430, 434-36 (5th Cir. 2006), this court held that it was plain
error for a district court to take the “mere fact of prior arrests into account” at
sentencing absent findings by the court, supported by reliable information, that
the crimes underlying the arrests had actually been committed by the defendant.
“Arrests, standing alone, do not constitute [such] reliable information.” Id. at
434.
       Even assuming that the district court plainly erred by basing the upward
departure, in part, on the 2007 possession arrest, reversal is not warranted. In
Jones, 444 F.3d at 438, this court held that when a district court plainly errs by
basing a departure upon a prior arrest, reversal is not warranted if “the record
as a whole does not indicate that it is reasonably probable [the defendant] would
have received a lesser sentence” if the district court had not so erred. Although
the district court mentioned Valadez’s 2007 possession arrest more than once
during sentencing, it emphasized that its consideration of an upward departure
was based “mainly”on Valadez’s 2006 Texas conviction for possessing 100 pounds
of marijuana (2006 possession conviction). Indeed, in announcing the imposition
of the upward departure, the district court explicitly based it upon the 2006
possession conviction and made no mention of the 2007 possession arrest. The

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record as a whole thus does not indicate that it is reasonably probable that
Valadez would have received a lower sentence but for the district court’s
consideration of the 2007 possession arrest. See Jones, 444 F.3d at 438.
      Valadez also argues that the upward departure was excessive. Section
5K2.0(a)(3) provides that an upward departure is appropriate if a case presents
a circumstance “taken into consideration in determining the guidelines range,
if the court determines that such circumstance is present in the offense to a
degree substantially in excess of, or substantially below, that which ordinarily
is involved in that kind of offense.” The district court determined that the
presentence report did not adequately reflect the seriousness of Valadez’s 2006
possession conviction. Given that Valadez admittedly possessed 100 pounds of
marijuana, he fails to show that the district plainly erred by concluding that he
intended to distribute the marijuana and that the 2006 possession conviction
effectively constituted a drug trafficking offense under § 2L1.2. See § 2L1.2
comment. (n. 1(B)(iv)) (possession with intent to distribute among drug
trafficking offenses); cf. United States v. Kates, 174 F.3d 580, 582 (5th Cir. 1999)
(“Intent to distribute may be inferred from the possession of a quantity of drugs
too large to be used by the defendant alone.”) (21 U.S.C. § 841 drug possession
case). Further, given that drug trafficking offenses qualify for, at minimum, a
12-level increase in offense level, see § 2L1.2(b)(1)(A) and (B), Valadez fails to
show that the district court plainly erred in imposing the more modest increase
at issue. See Rodriguez-Rodriguez, 530 F.3d at 387-88.
      Valadez also contends that the district court erred by failing to adequately
explain how the § 3553(a) factors justify his sentence. The district court stated
that it had considered the § 3553(a) factors and specifically mentioned the need
to avoid unwarranted disparity between Valadez and other similarly situated
defendants with prior drug trafficking convictions. The district court was not
required to engage in “robotic incantations that each statutory factor has been
considered.” United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006) (internal

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quotation marks and citation omitted). Further, because Valadez’s sentence is
a guidelines sentence, this court infers that the district court has considered all
the factors necessary under the Guidelines. See Rajwani, 476 F.3d at 249.
Valadez fails to show that the district court plainly erred by failing to sufficiently
articulate its application of the § 3553(a) factors.     See Rodriguez-Rodriguez,
530 F.3d at 387-88.
      Although Valadez does not indicate what he believes would have been an
appropriate guidelines range, had the district court not upwardly departed four
levels, Valadez’s guidelines range would have been 15-21 months of
imprisonment rather than the 24-30 month range under which he was
sentenced. The extent of the variance is less than other sentences that this court
has affirmed. See United States v. Brantley, 537 F.3d 347, 348-50 (5th Cir. 2008)
(applying plain error review and affirming a sentence that was 253% higher
than the top of the guidelines range); United States v. Smith, 440 F.3d 704, 708
n.5, 709-10 (5th Cir. 2006) (upholding departure from guidelines range
maximum of 27 months to 60 months); Jones, 444 F.3d at 433 (upholding
departure from guidelines range maximum of 57 months to statutory maximum
of 120 months); United States v. Smith, 417 F.3d 483, 492 (5th Cir. 2005)
(upholding departure from guidelines range maximum of 41 months to 120
months); United States v. Daughenbaugh, 49 F.3d 171, 174-75 (5th Cir. 1995)
(upholding departure from maximum of 71 months to 240 months).
      AFFIRMED.




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