     Case: 10-50621 Document: 00511454637 Page: 1 Date Filed: 04/22/2011




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

                                                 FILED
                                                                            April 22, 2011
                                     No. 10-50621
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JOSE TORRES-ALFARO, also known as Jose A. Torres,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 5:07-CR-418-1


Before JONES, Chief Judge, and SMITH and CLEMENT, Circuit Judges.
PER CURIAM:*
       Jose Torres-Alfaro (Torres) appeals the 84-month sentence imposed by the
district court for his guilty plea conviction for two counts of transporting illegal
aliens. He argues that his sentence, which was based on an upward departure
and an upward variance, was unreasonable.
       We review sentences for reasonableness. Gall v. United States, 552 U.S.
38, 51 (2007). Torres had four convictions in nine years, including a violent
assault on his wife, and has twice misrepresented his identity. With respect to

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-50621

the instant offense, he transported at least 12 aliens unrestrained in the bed of
a pickup truck, attempted to evade arrest by engaging in a high-speed chase on
the interstate, and seriously injured 12 aliens after he eventually crashed head-
on into a tree, ejecting the aliens. Torres also subjected interstate highway
travelers and law enforcement officers to the substantial risk of death or serious
bodily injury during his flight from law enforcement. Based on the foregoing, the
district court did not abuse its discretion by upwardly departing based upon its
finding that Torres’s criminal history category substantially underrepresented
the seriousness of his criminal history or the likelihood that he would recidivate.
See U.S.S.G. 4A1.3(a)(1); see also United States v. Brantley, 537 F. 3d 347, 349-
50 (5th Cir. 2008) (concluding that a lengthy criminal history justified the
imposition of an upward departure or variance where the defendant had not
learned from eight past convictions over twenty years). The departure was also
warranted under U.S.S.G. § 5K2.0(a)(1)(A), which authorizes upward departures
when the Guidelines do not adequately account for aggravating circumstances.
United States v. Saldana, 427 F.3d 298, 311-12 (5th Cir. 2005).
      This court has previously upheld greater departures or variances than the
one here at issue. See United States v. Lopez-Velasquez, 526 F.3d 804, 806-07
(5th Cir. 2008) (upholding as reasonable 42-month upward variance from 30-
month guideline maximum, based on prior deportations, lack of respect for the
law, and need for deterrence of future criminal behavior and protection of the
public); see also, e.g., Brantley, 537 F.3d at 349-50 (upholding an upward
variance to 180 months from an advisory maximum of 51 months); United States
v. Jones, 444 F.3d 430, 433, 441-42 (5th Cir. 2006) (affirming an upward
variance or departure to 120 months from a range of 46 to 57 months); United
States v. Smith, 417 F.3d 483, 492-93 (affirming upward departure from 41
months to 120 months of imprisonment); United States v. Rosogie, 21 F.3d 632,
633-34 (5th Cir. 1994) (affirming upward departure from 30-37 month guidelines



                                         2
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                                   No. 10-50621

range to 150 months of imprisonment). We similarly conclude that the degree
of departure was not unreasonable in this case.
      Torres also challenges the district court’s ruling that his federal sentence
must run consecutively with an anticipated, but not yet imposed, state sentence.
As Torres concedes, this argument is foreclosed by our precedent, see United
States v. Brown, 920 F.2d 1212, 1217 (5th Cir. 1991), abrogated on other grounds
by United States v. Candia, 454 F.3d 468, 472-73 (5th Cir. 2006), which remains
binding precedent in this circuit. See United States v. Setser, 607 F.3d 128, 131-
32 (5th Cir. 2010), petition for cert. filed (Nov. 2, 2010) (10-7387).
      AFFIRMED.




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