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

                                                                            FILED
                                                                         February 22, 2012
                                       No. 10-30807
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JUAN MANUEL DAVILA-MARTINEZ,

                                                  Defendant-Appellant


                   Appeals from the United States District Court
                       for the Western District of Louisiana
                              USDC No. 2:10-CR-74-1


Before GARZA, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Juan Manuel Davila-Martinez challenges the 60-month sentence imposed
by the district court following his guilty plea conviction for illegal reentry after
deportation. We AFFIRM.
       Davila-Martinez argues that the district court plainly erred by failing to
comply with United States Sentencing Guidelines Section 4A1.3. The claimed
error was the court’s failure to explain in detail its departure from the criminal
history category determined under the Guidelines and its selection of another



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-30807

one. He relatedly argues the district court abused its discretion in departing
upward based on the inadequacy of his criminal history category.
      The computation under the Guidelines resulted in an advisory range of 15
to 21 months. The Presentence Report did not suggest the criminal history
category underrepresented the defendant’s conduct. In imposing a sentence of
60 months, the district court did not state that it was utilizing Section 4A1.3 of
the Guidelines. The court did indicate, though, that the criminal history
computation was misleadingly low:
             I find that Mr. Davila’s criminal history computation . . . is a
      fairly healthy one. He apparently doesn’t have any respect for the
      laws of this country because he continues to violate them. He’s only
      been charged once with illegal reentry. So I find that his criminal
      history computation under represents his actual criminal history.

            In determining the sentence to be imposed, I’ve considered the
      factors contained in 18 U.S.C. Section 3553 and the Sentencing
      Guidelines. . . . [I]t is the judgment of this Court that [Mr. Davila]
      be incarcerated for a term of 60 months.
      The only objection counsel made was “under the facts and circumstances
of this case that the sentence [of] 60 months is unreasonable. We acknowledge
that prior to sentencing, nothing in this record suggested the court would
increase the sentence above the Guidelines range due to a finding that the
criminal history score was too low. Nonetheless, the district court identified that
finding as part of its analysis. This put counsel on notice that the court
disagreed with the sufficiency of the criminal history computation under the
Guidelines. That notice created an obligation to object to any apparent error in
the district court’s using the disagreement to depart or vary, to ask for
clarification in order better to form the objection, or otherwise to address the
issue. As Davila-Martinez accepts, he did not preserve the error now being
raised.   We thus will review only for plain error. See United States v.
Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009).



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                                   No. 10-30807

      The specific error Davila-Martinez claims is that the district court failed
to articulate required findings.     Failing to explain adequately the chosen
sentence is considered procedural error. Gall v. United States, 552 U.S. 38, 51
(2007). The relevant requirements of Section 4A1.3 are these:
      Determination of Extent of Upward Departure
      (A)    In General.—Except as provided in subdivision (B), the court
             shall determine the extent of a departure under this
             subsection by using, as a reference, the criminal history
             category applicable to defendants whose criminal history or
             likelihood to recidivate most closely resembles that of the
             defendant’s.
      (B)    Upward Departures from Category VI.—In a case in which
             the court determines that the extent and nature of the
             defendant’s criminal history, taken together, are sufficient to
             warrant an upward departure from Criminal History
             Category VI, the court should structure the departure by
             moving incrementally down the sentencing table to the next
             higher offense level in Criminal History Category VI until it
             finds a guideline range appropriate to the case.
U.S. S.G. § 4A1.3(a)(4)(A) & (B) (2009).
      The district court “should state for the record that it has considered each
intermediate adjustment” and “explain why the criminal history category as
calculated under the guidelines is inappropriate and why the category it chooses
is appropriate.” United States v. Lambert, 984 F.2d 658, 662-63 (5th Cir. 1993)
(en banc).   Similar explanations are to be made when the district court
determines that a departure above criminal history category VI is warranted.
United States v. Daughenbaugh, 49 F.3d 171, 174-75 (5th Cir. 1995).
      This obligation does not mean the district court must discuss mechanically
“each criminal history category it rejects en route to the category it selects.”
Lambert, 984 F.2d at 663. “Ordinarily the district court’s reasons for rejecting
intermediate categories will clearly be implicit, if not explicit, in the court’s
explanation for its departure from the category calculated under the guidelines
and its explanation for the category it has chosen as appropriate.” Id. Where

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it is not evident from the stated ground for departure, an “appellate court must
be able to ascertain from the reasons given for the sentence selected, read in the
context of the record as a whole, the legitimate basis or bases on which the
district court deemed the bypassed category inadequate.” Id.
      As stated in the PSR, Davila-Martinez’s criminal history category IV and
offense level 10 placed the Guidelines range at 15 to 21 months. A criminal
history category of VI and offense level of 17 or 18 results in a sentence of 60
months. U.S. Sentencing Guidelines Manual, Sentencing Table (2009). In order
to arrive at a sentence of 60 months, the district court must pass by criminal
history category V to arrive at VI. The court must then progress beyond
intermediate offense levels 11 through 16 or 17 to reach the final appropriate
Guidelines range.
      The basis for claiming error here is that the district court did not state on
the record that it considered intermediate adjustments and then explain why
those were rejected. The PSR, though, stated the initial Guidelines range where
the district court implicitly began. The district court’s written statement of
reasons reveal that the court was concerned that Davila-Martinez’s criminal
history evidenced he had “a blatant disrespect for the laws of this country.”
Among those incidents were prior illegal reentries for which he was not
prosecuted. The court determined this record warranted imprisonment for 60
months. The basis for the court’s rejection of intermediate categories was
implicit. As we earlier quoted from Lambert, often “the district court’s reasons
for rejecting intermediate categories will clearly be implicit,” and that is
sufficient. Lambert, 984 F.2d at 663. It is the rare case that the district court
“will need to explain in careful detail why lesser adjustments in the defendant's
criminal history score would be inadequate.” Id.
      Further, Davila-Martinez has not shown that any error affected his
substantial rights as he has not shown that there is a reasonable probability
that, but for the district court’s failure to articulate the reasoning, he would have

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received a lesser sentence or that the district court could not have imposed the
same sentence. See United States v. Jones, 444 F.3d 430, 438 (5th Cir. 2006).
      Davila-Martinez also argues that the district court erred because his
criminal history category of IV adequately represented his criminal history. The
Guidelines specifically permit a sentencing court to depart upward if a
defendant’s “criminal history category substantially under-represents the
seriousness of the defendant’s criminal history or the likelihood that the
defendant will commit other crimes.” U.S.S.G. § 4A1.3(a)(1). The district court’s
decision to depart upward was justified by the facts of the case. United States
v. Zuniga-Peralta, 442 F.3d 345, 347-48 (5th Cir. 2006).
      AFFIRMED.




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