     Case: 11-20100     Document: 00511688562         Page: 1     Date Filed: 12/07/2011




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

                                                                            FILED
                                                                         December 7, 2011
                                     No. 11-20100
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

FERNANDO SOTO ZAVALA, also known as Fernando Soto, also known as
Fernando Soto-Zavala, also known as Fernando Arreola Soto,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:10-CR-612-1


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        Fernando Soto Zavala appeals his 37-month sentence for being found
illegally in the United States following previous deportation for a felony. He
argues that the district court erred in basing an upward departure, in part, on
his 2002 and 2010 arrests for assault.
        Because Zavala did not raise this issue in the district court, review is for
plain error. To show plain error, Zavala must show a forfeited error that is clear


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-20100

or obvious and that affects his substantial rights. See Puckett v. United States,
556 U.S. 129, 129 S. Ct. 1423, 1429 (2009). If Zavala makes such a showing, this
court has the discretion to correct the error but only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. See id.
       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.
       The district court’s reliance on the arrests for assaultive conduct that
actually resulted in convictions does not implicate the concerns identified in
Jones. Even assuming that the district court plainly erred by basing the upward
departure, in part, on the 2002 and 2010 arrests for assault, Zavala is not
entitled to relief because he cannot show that this error affected his substantial
rights.
       When imposing Zavala’s sentence, the district court noted the prior arrests
in the context of expressing concern with the thread of assaultive behavior
inherent in Zavala’s criminal history. The district court also discussed Zavala’s
four previous deportations, his “considerably understated” criminal history
category, and the “high” likelihood that the defendant will commit future crimes.
The district court explained that the sentencing range with a base offense level
of 12 and a criminal history category of IV was the first sentencing range “that
would be sufficient to achieve the objectives of punishment and deterrence given

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                                  No. 11-20100

the defendant’s substantial criminal history, high likelihood of recidivism, and
complete and repeatedly demonstrated disregard and disrespect for the laws of
the United States.”
      Accordingly, because the record does not indicate a reasonable probability
that the district court would have imposed a lesser sentence had it not
considered Zavala’s 2002 and 2010 arrests for assault, Zavala cannot show that
his substantial rights were affected. See United States v. Williams, 620 F.3d
483, 493 n.9 (5th Cir. 2010), cert. denied, 131 S. Ct. 1534 (2011).
      AFFIRMED.




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