     Case: 09-10878     Document: 00511136400          Page: 1    Date Filed: 06/09/2010




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

                                                  FILED
                                                                            June 9, 2010
                                     No. 09-10878
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

MARTIN DEL VALLE-CISNEROS,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:09-CR-14-1


Before REAVLEY, DAVIS, and HAYNES, Circuit Judges.
PER CURIAM:*
        Martin Del Valle-Cisneros (Del Valle) appeals the 48-month sentence
imposed after he pleaded guilty to illegal reentry in violation of 8 U.S.C. § 1326.
The sentence is an upward departure under U.S.S.G. § 4A1.3 (2008) from the
advisory guidelines maximum sentence of 30 months. Del Valle contends that
the departure was improperly based on his record of arrests.
        Del Valle’s arguments concerning the weight to be given certain
immigration arrests did not advise the district court of the issue he now raises

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-10878      Document: 00511136400 Page: 2        Date Filed: 06/09/2010
                                   No. 09-10878

on appeal, which is that arrests cannot serve as a basis for an upward departure
under § 4A1.3. Accordingly, we review his contention on appeal only for plain
error. See United States v. Neal, 578 F.3d 270, 272 (5th Cir. 2009); F ED. R. C RIM.
P. 51(b). To show plain error, Del Valle must show an error that is clear or
obvious and that affects his substantial rights. See Puckett v. United States, 129
S. Ct. 1423, 1429 (2009). If he makes such a showing, we have the discretion to
correct the error if it seriously affects the fairness, integrity or public reputation
of judicial proceedings. See id.
      Even if we assume that the sentence was based partly on Del Valle’s
arrests, see United States v. Jones, 489 F.3d 679, 681-82 (5th Cir. 2007), we find
that would not affect Del Valle’s substantial rights because Del Valle has not
shown that the district court either could not or would not have imposed the
same sentence absent consideration of the arrests. See United States v. Davis,
602 F.3d 643, 2010 WL 1254634 *2, *6 n.6 (5th Cir. Apr. 2, 2010). We also find
that this would not seriously affect the fairness or integrity of the proceedings.
See id., 2010 WL 1254634 at *5; Jones, 489 F.3d at 682. Other factors, including
Del Valle’s use of aliases, his prior convictions, and his illegal reentries,
removals, and departures fully supported the upward departure. See Jones, 489
F.3d at 682; United States v. Zuniga-Peralta, 442 F.3d 345, 347-48 (5th Cir.
2006) (upholding a departure based on prior uncounted offenses and
deportations and the use of numerous aliases).
      In addition, the extent of the 18-month departure and the ultimate 48-
month sentence are reasonable.         Cf. Jones, 489 F.3d at 680-81 (affirming
departure    to   60   months   from    guidelines   maximum       of   37   months);
Zuniga-Peralta, 442 F.3d at 348 (affirming departure to 60 months from
guidelines maximum of 33 months).          The judgment of the district court is
AFFIRMED.




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