     Case: 13-10605       Document: 00512638793         Page: 1     Date Filed: 05/22/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                     No. 13-10605
                                   Summary Calendar
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
                                                                             May 22, 2014
UNITED STATES OF AMERICA,
                                                                            Lyle W. Cayce
                                                                                 Clerk
                                                  Plaintiff - Appellee

v.

MANUEL RAMIREZ-CORDOBA,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:12-CR-205-1


Before JONES, BARKSDALE, and HAYNES, Circuit Judges.
PER CURIAM: *
       Manuel Ramirez-Cordoba challenges the sentence imposed as a result of
his guilty-plea conviction of illegal reentry following deportation, in violation
of 8 U.S.C. § 1326 (reentry of removed illegal aliens). Pursuant to Sentencing
Guideline § 4A1.3, the district court departed upwardly from the 15 to 21-
month advisory Guidelines sentencing range and imposed a 30-month
sentence, after finding Ramirez’ criminal-history category did not adequately


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 13-10605

address his past criminal conduct.           Ramirez contends the court erred
procedurally in departing upwardly.
      Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still properly calculate the Guidelines-sentencing range for use in deciding on
the sentence to impose. Gall v. United States, 552 U.S. 38, 51 (2007). In that
respect, for issues preserved in district court, its application of the Guidelines
is reviewed de novo; its factual findings, only for clear error. E.g., United States
v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). “[W]e review upward
departures for reasonableness”, requiring this court to evaluate both the
“decision to depart upwardly and the extent of that departure for [an] abuse of
discretion”. United States v. Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir. 2006)
(citation and internal quotation marks omitted). “An upward departure . . . is
not an abuse of discretion if the court’s reasons for departing 1) advance the
objectives set forth in 18 U.S.C. § 3553(a)(2) and 2) are justified by the facts of
the case”. Id. (citation and internal quotation marks omitted).
      Ramirez asserts departure is not warranted when application of the
advisory Guidelines results in convictions not being factored in the
determination of his criminal-history category. The district court did not rely
exclusively on Ramirez’ uncounted convictions or sentences; rather it also
considered Ramirez’ repeated illegal returns and his use of 14 aliases.
Nonetheless, uncounted sentences are a proper basis for a § 4A1.3 upward
departure. See U.S.S.G. § 4A1.3(a).
      Although Ramirez concedes he has several prior convictions, he contends
his criminal-history category of IV does not substantially under-represent the
seriousness of his past criminal conduct. He asserts the § 4A1.3 departure



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                                   No. 13-10605

provision is meant for cases involving more serious criminal histories than his,
and so, an upward departure cannot be imposed unless he is an “exceptional
case” under Guideline § 5K2.0(a)(3). The inadequacy of a defendant’s criminal-
history category, however, “is a factor not taken into account by the Guidelines
and is a permissible justification for upward departure”. United States v.
Laury, 985 F.2d 1293, 1310 (5th Cir. 1993) (citation and internal quotation
marks omitted).      Moreover, an upward departure under § 4A1.3 may be
justified by “a long criminal history of nonviolent crimes”. United States v.
Roach, 1994 WL 83366, at *2 (5th Cir. 21 Feb. 1994) (unpublished). As a result,
Ramirez’ claims regarding the seriousness of his criminal history and the
§ 5K2.0(a)(3) “exceptional case” requirement fail.
      Regarding the extent of the departure, the 30-month sentence
constituted a nine-month increase above the original high end of the 15 to 21-
month advisory sentencing range, which is well within the range of departures
our court has upheld. See, e.g., United States v. Jones, 444 F.3d 430, 433, 442–
43 (5th Cir. 2006) (affirming departure from 46–57 month range to 120
months); Zuniga-Peralta, 442 F.3d at 346–48 (affirming departure from 27–33
month range to 60 months).
      The district court’s reasoning advances “the objectives set forth in 18
U.S.C. § 3553(a)(2) and . . . [is] justified by the facts of the case”; therefore, it
did not abuse its discretion either in departing upwardly pursuant to § 4A1.3
or in the extent of its departure.       See Zuniga-Peralta, 442 F.3d at 347.
(Accordingly, we need not consider Ramirez’ claims concerning the alternative
36-month upward-variance sentence. See United States v. Bonilla, 524 F.3d
647, 656–59 (5th Cir. 2008).)
      AFFIRMED.




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