   Case: 09-10629       Document: 00511064180          Page: 1    Date Filed: 03/26/2010




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

                                                 FILED
                                                                           March 26, 2010
                                     No. 09-10629
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk




UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

versus

IVAN MUNOZ-FAVELA,

                                                   Defendant-Appellant.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:09-CR-5-1




Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*


       Ivan Munoz-Favela was convicted of illegal reentry. See 8 U.S.C. § 1326.
He appeals the sentence resulting from an upward departure pursuant to

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-10629      Document: 00511064180 Page: 2       Date Filed: 03/26/2010
                                   No. 09-10629

U.S.S.G. § 4A1.3. He argues that the district court erred procedurally in failing
to consider each intermediate step as it moved up the various offense levels with-
in category VI. Our review of Munoz’s procedural challenge is for plain error.
See United States v. Neal, 578 F.3d 270, 272 (5th Cir. 2009); F ED. R. C RIM. P.
51(b).
         In United States v. Lambert, 984 F.2d 658, 663 (5th Cir. 1993) (en banc),
this court stated, “Ordinarily the district court’s reasons for rejecting intermedi-
ate 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 ex-
planation for the category it has chosen as appropriate.” That is the case here:
The court plainly set forth the reasons for its upward departure, thereby impli-
citly rejecting intermediate offense levels. See, e.g., United States v. Zuniga-Per-
alta, 442 F.3d 345, 348 n.2 (5th Cir. 2006). Thus, Munoz has not shown error,
plain or otherwise, as to the procedural soundness of his sentence. See Alford,
142 F.3d at 830-31.
         Munoz contends further that the district court justified its upward depar-
ture on an impermissible basis in that, although none of his prior convictions
qualified as aggravated felonies, the court considered them as such because the
violent conduct underlying those convictions resembled felonies. This claim
amounts to speculation as to the motives for imposing an upward departure.
Moreover, the argument is contradicted by the record. The court plainly stated
that the prior offenses “did not rise to the level of aggravated felonies.” Because
the court did not classify Munoz’s prior violent offenses as “aggravated felonies”
or “crimes of violence,” the categorical approach had no application in the sen-
tencing proceedings. See, e.g., United States v. Ellis, 564 F.3d 370, 371-72 (5th
Cir.), cert. denied, 130 S. Ct. 371 (2009).
         AFFIRMED.




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