             IN THE UNITED STATES COURT OF APPEALS

                                FOR THE FIFTH CIRCUIT
                                             _______________

                                               m 99-21147
                                             _______________

                                    UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                                  VERSUS

                                       JUAN HIJINIO GUTIERREZ,

                                                               Defendant-Appellant.
                                      _________________________

                              Appeal from the United States District Court
                                  for the Southern District of Texas
                                           (H-99-CR-299-1)
                                   _________________________
                                          February 12, 2001


Before REYNALDO G. GARZA, DAVIS                        we affirm.
  and JONES, Circuit Judges.
                                                                              I.
PER CURIAM:       *                                        Gutierrez pleaded guilty to count 1 of an in-
                                                       dictment charging him with being a felon in pos-
    Juan Gutierrez contends that in sentencing, the    session of a firearm in violation of 18 U.S.C.
district court erred in departing upward from 16 to    §§ 922(g)(1) and 924 (a)(2).1 The probation
19 in assessing his offense level. Concluding that     officer determined that Gutierrez had an
the court relied on permissible factors for            offense level of 16 and a criminal history
departure, made a reasonable determination that
the factors removed the case from the heartland of
the applicable guideline, and did not abuse its            1
                                                             Acting on a tip that Gutierrez was a felon and
discretion in the degree of the upward departure,      had been seen in possession of firearms and that he
                                                       and others were planning a robbery of five to
                                                       fifteen kilograms of cocaine, Bureau of Alcohol,
   *
     Pursuant to 5TH CIR. R. 47.5, the Court has       Tobacco, and Firearms agents executed two search
determined that this opinion should not be published   warrants and found five guns in Gutierrez’s vehicle
and is not precedent except under the limited          and residence. Gutierrez admitted that three of the
circumstances set forth in 5TH CIR. R. 47.5.4.         guns belonged to him.
category of VI, based on a total criminal              district court may presumably depart on that
history score of 14.       His guideline-              factor although the appropriate circumstances
imprisonment range was 46-57 months; the               will vary depending on whether the factor is
statutory maximum was ten years.                       encouraged, discouraged, or unmentioned.”
                                                       Id. at 375.
   The probation officer noted that Gutierrez’s
criminal history score did not reflect the se-            If a factor is encouraged, courts can de-
riousness of his prior criminal conduct and re-           part only “if the applicable Guideline
commended an upward departure. Although                   does not already take it into account.”
Gutierrez did not file written objections to the          If the factor is discouraged, or
presentence report (“PSR”), the question                  encouraged but already taken into
whether an upward departure was warranted                 account by the applicable guideline,
was argued at the sentencing hearing. The                 courts can depart “only if the factor is
court overruled Gutierrez’s objection, adopted            present to an exceptional degree or in
the findings and conclusions in the PSR, and              some other way makes the case different
departed upward by three offense levels.                  from the ordinary case where the factor
                                                          is present.”        If the factor is
                     II.                                  unmentioned, “the court must, after
   Under Koon v. United States, 518 U.S. 81               considering the structure and theory of
(1996), this court’s                                      both relevant individual guidelines and
                                                          the Guidelines taken as a whole[,]
   analysis of a district court’s decision to             decide whether the factor is sufficient to
   depart consists of three separate                      take the case out of the Guideline’s
   determinations. An appellate court must                heartland.”
   ask: (1) whether the factors relied on by
   the district court for departure are                Id. (quoting Koon, 518 U.S. at 94-96)
   permissible factors under the Guidelines;           (internal quotation marks and brackets
   (2) whether the departure factors, as               omitted).
   supported by evidence in the record,
   remove the case from the heartland of                       So, whether a given factor is
   the applicable guideline; and (3) whether              permissible depends on how the factor is
   the degree of departure is reasonable.                 classified. An impermissible factor is a
                                                          forbidden factor, a discouraged factor
United States v. Threadgill, 172 F.3d 357, 374            not present to an exceptional degree, or
(5th Cir.) (footnote omitted), cert. denied,              an encouraged factor already considered
120 S. Ct. 172 (1999).                                    by the Guidelines and not present to an
                                                          exceptional degree. All other factors
   In determining whether the factors relied on           cannot be precluded categorically as a
are permissible, we consider whether “the                 possible basis for departure.
departure factor is forbidden, encouraged, dis-
couraged, or unmentioned by the Guidelines.”           Id. (citing Koon, 518 U.S. at 94-96) (internal
Id. (discussing Koon, 518 U.S. at 92-96). “If          citation omitted).
the departure factor is not forbidden, the


                                                   2
   We do not defer to the district court’s legal             three days after his plea in this present
determinations, such as whether a factor is a                case, he was arrested in Harris County
permissible basis for departure. Id. (citing                 on new felony charges. To my mind,
Koon, 518 U.S. at 100).                 Factual              this behavior demonstrates a total
determinations, however, are entitled to                     disregard for the law and illustrates a
“substantial deference.” Id. (citing Koon, 518               propensity a [sic] recidivism.
U.S. at 97-99). “[W]hen a district court
decides to depart based on the particular facts                   An upward departure under
of a case, it is acting within its special                   Guideline 4A1.3 is going to be ordered.
competence.        Accordingly, it is the                    In determining the extent of the
near-exclusive province of the district court to             departure, it's noted the defendant is
decide whether a particular factor, or set of                already at a Criminal History Category
factors, removes a case from the applicable                  of 6, which is the maximum; therefore, a
heartland.” Id. at 376 (citing Koon, 518 U.S.                departure upwards of three levels on the
at 376) (internal citations omitted).                        vertical access [sic] of the sentencing
                                                             table to an offense level of 19 the Court
   The district court gave the following                     feels is appropriate.
reasons for its upward departure:
                                                             Gutierrez’s counsel objected:
        Keeping in mind that he was on
   bond when some of this took place,2 to-                   Since the Court has decided to depart
   gether with, most importantly, his                        upward, I would respectfully point out
   criminal history, he is before the Court                  the information in Section 4A1.3 in the
   with at least four prior felony                           guidelines specifically discusses
   convictions, as identified in Part F of the               departures from Category 6. We would
   report, numerous additional criminal                      object to the upward departure. The
   charges were either dismissed or treated                  guidelines apparently do not
   as related cases.                                         contemplate an upward departure where
                                                             the seriousness of the defendant’s
        The criminal history points of 16 in                 criminal record is other than egregious.
   the Court’s mind does not truly address                   I would point out to the CourtSSI am
   his criminal history.3 While on bond,                     sure Your Honor already has looked at
                                                             thisSSthese are auto thefts.
   2
      While Gutierrez was released on bond                        ...
following entry of his guilty plea, he was arrested
for possession of stolen property. Although                  I don’t believe this is the kind of
Gutierrez denied at sentencing that he knew the
                                                             egregious criminal history that the
property was stolen, his attorney conceded that it
                                                             guidelines, the drafters of the guidelines
did appear that Gutierrez was still involved in
criminal conduct.                                            contemplated.

   3
     Gutierrez actually had 14 criminal history
points, one more than the 13 points required for a
criminal history category VI. Gutierrez had an            offense level of 16.

                                                      3
Counsel also objected that the district court             The second uncounted misdemeanor
had failed to articulate reasons for departing         conviction was for possession of marihuana re-
three offense levels, as opposed to one or two.        lated to Gutierrez’s 1996 felony conviction for
                                                       unauthorized use of a motor vehicle. A baggie
    The probation officer observed that Gutier-        of marihuana was found in his pocket at the
rez’s criminal history included more than mere         time of arrest.4
auto theft; it also included escape attempts,
and several of the offenses involved weapons.             Gutierrez argues that these misdemeanor
The government noted that Gutierrez had                convictions were impermissible factors. He
convictions for resisting arrest and possession        contends that although it is permissible to con-
of marihuana. Gutierrez’s related crimes               sider uncounted convictions that are not
involved fleeing or attempting to elude police         factually related to counted offenses, but were
officers, criminal mischief, and carrying              consolidated for sentencing, it is impermissible
firearms.                                              to consider uncounted convictions that are
                                                       factually related to the offenses that were
   The district court concluded that the               counted.      Gutierrez relies on U.S.S.G.
reasons for its upward departure had been              § 4A1.2, comment 3, to make this distinction.
adequately stated and that if they were not,
additional reasons mentioned by the probation
officer and the prosecutor provided “reasons              Gutierrez has misread the comment,
encompassed in the Court’s decision to                 however. It does not say that related
upward depart three levels.”                           convictions arising from the same incident are
                                                       impermissible bases of departure. In fact, it
                     III.                              treats all related convictions the same,
   Our review of the sentencing begins with a          regardless of whether they arose from the
determination of whether the court relied on           same incident.      Any uncounted, related
impermissible factors. Here, it did not.               convictions may form the basis of a departure,
                                                       because, under the guidelines, “assignment of
                       A.                              a single set of points [to related convictions]
   Gutierrez asserts that his two                      may not adequately reflect the seriousness of
misdemeanors that were not counted as part of          the defendant’s criminal history or the
his criminal history score were not permissible        frequency with which he has committed
factors for upward departure. The first of the         crimes.” U.S.S.G. § 4A1.2, comment 3. The
uncounted misdemeanor convictions was for              district court therefore did not err in
resisting arrest related to a 1994 felony              considering Gut ierrez’s uncounted
conviction for unlawful use of a motor vehicle.        misdemeanors.
Gutierrez attempted to elude officers and
crashed the vehicle into a fence, then fled on
foot but was subdued by an officer. During
their scuffle, Gutierrez struck the officer with          4
                                                            A gun was also found in the purse of Gutier-
his fists and tried to choke him. The officer          rez’s female passenger. The passengers told au-
suffered a bad knee injury and cuts and                thorities that the gun belonged to Gutierrez and that
abrasions.                                             Gutierrez had forced her to put the gun in her
                                                       purse.

                                                   4
                       B.                               rest while on bond is an impermissible factor
    Gutierrez asserts that the consideration of         because although § 4A1.3 provides that the
his arrest while on bond in this case was an            sentencing court may consider “all relevant
impermissible factor, because it was a factor           information” in deciding whether to depart, it
that had already been taken into account, or            also states that “a prior arrest record itself
alternatively, because a mere arrest record is          shall not be considered . . . .” § 4A1.3. In
an impermissible factor. Gutierrez points out           United States v. Cantu-Dominguez, 898 F.2d
that the court denied a reduction for                   968 (5th Cir. 1990), we vacated and remanded
acceptance of responsibility based on this              a sentence involving an upward departure in
subsequent arrest while on bond. He was                 which the only reason given for the departure
arrested three days after his guilty plea in this       was the defendant’s prior arrest record. We
case on charges of possession of stolen                 reasoned:
property; he contends that, under the Koon
rubric, the arrest constituted an “encouraged              [T]he district court stated specifically
factor already considered by the guidelines and            that it did not find that Cantu-Domin-
not present to an exceptional degree.”                     guez had committed the various offenses
Threadgill, 172 F.3d at 375.                               for which he had been arrested. The
                                                           court thus was left with nothing but a
   Gutierrez is conflating the denial of a                 history of arrests that did not result in
downward adjustment for acceptance of                      convictions. This is not the type of
responsibility with the initial determination of           “reliable information” that justifies a
a defendant’s offense level. A denial of a                 departure from the applicable sentencing
downward adjustment, based on one factor or                range. Indeed, the guidelines explicitly
a number of factors, does not mean that those              reject reliance on a prior arrest record
factors have been taken into account in                    alone as a basis for an upward
determining the offense level. Thus, a court               departure.
may use the same factor both to deny a
downward departure and to give an upward                Id. at 970-71.
departure.
                                                            The court inquired whether it appeared
    For example, if a rapist admits that he will        likely that Gutierrez had committed the offense
rape again when possible, this is not given any         for which he was arrested while on bond, and
points in determining his offense level. A              even Gutierrez’s attorney agreed that it looked
court could, however, use this fact both to             likely that Gut ierrez was guilty of possession
deny a downward departure for acceptance of             of stolen propert y. This is more than a mere
responsibility and to depart upward, because            arrest record and therefore may be considered
the rapist presents a high risk of recidivism.          in deciding to depart upward.5 Further, a
This does not constitute erroneous double-
counting of the same factor, but is simply use
of the factor to decide whether to depart up or            5
                                                             See United States v. Ashburn, 38 F.3d 803,
down.                                                   807-08 (5th Cir. 1994) (en banc) (stating that un-
                                                        der § 1B1.4, the court could “consider, without
   Gutierrez argues, alternatively, that his ar-        limitation, any information concerning the
                                                        background, character and conduct of the

                                                    5
court, in departing upward, may consider the             pursuant to a plea agreement are permissible
likelihood of recidivism.6                               factors, because they have some greater
                                                         measure of reliability than does a mere arrest
                       C.                                record. Thus, in Ashburn we held that the
    Gutierrez similarly argues that pending and          court had properly considered prior criminal
dismissed charges are forbiddenSSor at best              conduct related to dismissed counts of the
highly infrequentSSbases for departure. Gu-              indictment in that case. 38 F.3d at 807-08.
tierrez had four prior dismissed charges. The            We noted that, under § 4A1.3(e), a court is
firstSSfor burglary of a motor vehicleSSwas              authorized to consider “prior similar adult
dismissed at the time of the guilty plea for un-         criminal conduct not resulting in criminal
authorized use of a motor vehicle in 1991.               conviction.” Id. at 807.
The secondSSfor fleeing or attempting to elude
a police officerSSwas dismissed in 1991,                    The two charges that were dismissed for
because Gutierrez had been convicted in a                unknown reasons are more troubling bases for
related case. The other two dismissed charg-             departure. There is no way to know whether
esSSfor criminal mischief and for carrying a             these charges were dismissed because they
weaponSSwere dismissed for unspecified rea-              lacked merit or for other reasons. Fortunately,
sons in 1997. The district court stated that it          we do not need to decide whether these
had considered these pending and dismissed               dismissed charges were permissible factors,
charges in deciding to depart upward.                    because there were sufficient other factors
                                                         upon which the court could base its decision.7
   Our analysis of the permissibility of
considering these dismissed charges tracks our                                 D.
analysis of the use of Gutierrez’s arrest while             Gutierrez contends that it was
on bond in considering an upward departure.              impermissible to depart upward because he
Here also, a court must rely on more than a              had only fourt een criminal history
mere arrest record; there must be evidence that          pointsSSonly one more than the minimum
the defendant committed the crimes he was                needed to be categorized in criminal history
charged with and was not simply erroneously              category VI. He cites no portion of the
charged.                                                 guidelines and no cases to support this
                                                         contention, however. The guidelines say
   The two charges that were dismissed                   departure is appropriate when a criminal’s
                                                         offense level does not adequately reflect his
                                                         dangerousness or likelihood of recidivism. We
defendant, unless otherwise prohibited by law”)          therefore reject Gutierrez’s circular argument
(citation omitted).                                      that a court cannot raise a criminal’s offense
   6
     See U.S.S.G. § 4A1.3; United States v. Con-
nely, 156 F.3d 978, 984 (9th Cir.) (reasoning that
                                                            7
upward departure under § 4A1.3 is “justified                  See United States v. Kay, 83 F.3d 98, 101
purely on the basis of defendant’s likelihood of         (5th Cir. 1996) (“A sentence may be found to be
recidivism” and whether his likelihood of                reasonable even though one or more of the reasons
recidivism is under-represented by his criminal          assigned in justification of the departure be deemed
history category), cert. denied, 525 U.S. 1128           invalid, provided that the remaining reasons suffice
(1998).                                                  to justify the departure.”)

                                                     6
level to group him with defendants exhibiting          Id. at 520.8
more serious criminal conduct because raising
his offense level would group the criminal with            Under our standard of substantial
those who exhibit more serious criminal                deference, we conclude that the district court
conduct.                                               did not err in deciding that these factors
                                                       removed Gutierrez’s case from the heartland
                       IV.                             of the applicable guideline. The uncounted
   Having determined that the factors relied on        misdemeanor charges were particularly telling
were permissible, we consider whether they             as to the seriousness of Gutierrez’s criminal
were sufficient to remove the case from the            history. The fact that he was willing to attack
heartland of the applicable guideline, keeping         and try to choke a police officer strongly sup-
in mind that when a district court determines          ports the determination that this case is outside
that a set of factors removes a case from the          of the heartland of an offense level of 16. The
applicable heartland, it is acting within its          likelihood that Gutierrez was in felony
special competence. A court may depart                 possession of stolen property three days after
upward “[i]f reliable information indicates that       he pleaded guilty also strongly supports the
the criminal history category does not                 determination that he presents more risk of
adequately reflect the seriousness of the              recidivism than is typical of an offense level of
defendant’s past criminal conduct or the like-         16.
lihood that the defendant will commit other
crimes[.]” U.S.S.G. § 4A1.3, p.s.; see also               Lastly, the charges that were dismissed
18 U.S.C. § 3553(b).                                   pursuant to plea bargains provide further sup-
                                                       port for the departure. The fact that Gutier-
    In Ashburn, 38 F.3d at 810, we affirmed            rez had earlier been charged with burglary of
the upward departure “in light of the evidence         a motor vehicle and that he attempted to elude
of numerous instances of past criminal                 arrest on another occasion lends credence to
conduct, which were not considered in the              the determination that this case is outside the
criminal history calculation, and the                  heartland.
overwhelming indication that the defendant
was inclined to return to a similar course of                                 V.
behavior.” In United States v. Harrington,                 Having determined that the district court
114 F.3d 517, 519-20 (5th Cir. 1997), we               relied on permissible factors and did not err in
affirmed the upward departure based on three           deciding that these factors removed the case
prior contempt-of-court convictions and one            from the heartland of typical cases with
prior reckless-driving conviction, which had           offense levels of 16, we turn to the third
not been included in the original computation
of the criminal history category. The district
court had reasoned that the convictions                   8
                                                            See also United States v. Pennington, 9 F.3d
demonstrated the defendant’s “manifold                 1116, 1118 (5th Cir. 1993) (concluding that de-
disrespect for the law and our judicial system.”       fendant’s long history of crime, which included
                                                       several prior convictions that were not included in
                                                       his criminal history calculation, “demonstrated a
                                                       disrespect for the law not adequately reflected by a
                                                       category VI criminal history”).

                                                   7
question of the Koon test: whether the degree                criminal history, taken together, are
of departure is reasonable. Our review of the                sufficient to warrant an upward
record, again with substantial deference to the              departure from Criminal History
trial court, leads us to conclude that the                   Category VI, the court should structure
departure was reasonable.                                    the departure by moving incrementally
                                                             down the sentencing table to the next
   By the time Gutierrez reached age 27, he                  higher offense level in Criminal History
had four felony convictions, each of which                   Category VI until it finds a guideline
involved attempts to elude police and/or resist              range appropriate to the case.
arrest. These facts, when considered with the
related but uncounted misdemeanor                         § 4A1.3, p.s.; see also § 3553(c)(2).
convictions, the dismissed charges showing a
history of theft and attempts to elude police,               Although a court should indicate the
and the probability that Gutierrez returned to            reasons for its upward departure, it is not
crime immediately after pleading guilty, are              required
more than sufficient under the “substantial
deference” standard to support the decision to               to go through a ritualistic exercise in
depart upward three levels. See Threadgill,                  which it mechanically discusses each
172 F.3d at 375.                                             criminal history category [or offense lev-
                                                             el] it rejects en route to the category [or
                     VI.                                     offense level] that it selects. Ordinarily
   Gutierrez contends that the court erred in                the district court’s reasons for rejecting
increasing the offense level from 16 to 19                   intermediate categories [or offense
without stating adequate reasons why the in-                 levels] will clearly be implicit, if not
termediate offense levels of 17 and 18 were                  explicit, in the court’s explanation for its
not adequate. This argument goes to the rea-                 departure from the category [or level]
sonableness of the departure. See Threadgill,                calculated under the guidelines and its
172 F.3d at 374.                                             explanation for the category [or level] it
                                                             has chosen as appropriate.
   When making an upward departure, a court
should consider each intermediate criminal                Lambert, 984 F.2d at 663; see also Daughen-
history category or offense level and explain             baugh, 49 F.3d at 175.
why it is inadequate and why the sentence
imposed was appropriate.9 The policy                         The district court did follow § 4A1.3 in
statement provides:                                       moving incrementally down the guideline sen-
                                                          tencing grid. Although it might have better
   Where the court determines that the ex-                explained its reasons for rejecting the
   tent and nature of the defendant’s                     intermediate offense levels, it is evident that it
                                                          rejected those levels and rejected them as
                                                          being inadequate.10
   9
     United States v. Daughenbaugh, 49 F.3d 171,
175 (5th Cir. 1995) (offense levels); United States
                                                             10
v. Lambert, 984 F.2d 658, 662-63 (5th Cir. 1993)               See Lambert, 984 F.2d at 663 ("Although the
(en banc) (criminal history categories).                  court’'s decision could have been more explicitly

                                                      8
   AFFIRMED.




tied to the incremental character of criminal history
departures, we are satisfied that the appellate
record presents a basis upon which we may
reasonably conclude that the district court
thoroughly considered the appropriate guidelines in
arriving at its ultimate sentence.).

                                                        9
