                                                                              United States Court of Appeals
                                                                                       Fifth Circuit
                                                                                     F I L E D
                          UNITED STATES COURT OF APPEALS
                               FOR THE FIFTH CIRCUIT                                 August 25, 2004

                              _________________________                          Charles R. Fulbruge III
                                                                                         Clerk
                                     No. 04-10068
                                   SUMMARY CALENDAR
                              _________________________

UNITED STATES OF AMERICA,

                      Plaintiff - Appellee,

       v.

RIGOBERTO GRIJALVA-LOPEZ, also know as Marcos
Ventura-Lopez, also known as Jesus Guardado-Sanchez, also
known as Mario Alberto, also known as Carlos Alberto, also
known as Jesus Gomez-Sanchez, also known as Marcus
Ventura-Lopez,

                      Defendant - Appellant.

_________________________________________________________________

      Appeal from the United States District Court for the
                    Northern District of Texas
                        (4:03-CR-264-ALL-A)
_________________________________________________________________

Before REYNALDO G. GARZA, DAVIS, and BARKSDALE, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:1

       In this appeal, we review the sentence of Defendant -

Appellant, Rigoberto Grijalva-Lopez, for illegal re-entry

following deportation in violation of 8 U.S.C. §§ 1326(a), (b)(2)

and 6 U.S.C. §§ 202(3), (4), and 557.                      For the following reasons,

we uphold the sentence.


       1
        Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R.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.

                                               -1-
     Grijalva-Lopez argues that the district court erred in

departing upward from the Sentencing Guidelines range.      Grijalva-

Lopez had previously been charged in state court with residential

burglary and aggravated kidnaping, but he eventually pleaded

guilty to the lesser charges of trespassing and false

imprisonment.   He argues that the district court’s consideration

of the charged offenses instead of the convicted offenses without

an independent investigation of the facts was in opposition to

the requirements of U.S.S.G. § 4A1.3(a)(3) which allows the

district court to determine whether a defendant’s criminal

history category substantially underrepresents his criminal

history or the likelihood that he will commit other crimes.

     We review the district court’s decision to depart under 18

U.S.C. § 3742(e)(3)(B) de novo.     See United States v. Phipps, 368

F.3d 505, 513 (5th Cir. 2004); United States v. Lee, 358 F.3d

315, 326-27 (5th Cir. 2004).

     The Sentencing Guidelines do not prohibit a district court

from considering information other than the factors listed in §

4A1.3(a)(2) in determining whether a defendant’s criminal history

category substantially underrepresents his criminal history or

the likelihood that he will commit other crimes.      U.S.S.G. §§

1B1.1, comment (n.2), 4A1.3(a)(2).      In this case, the district

court did not consider Grijalva-Lopez’s prior arrest record

itself in deciding to depart upwards and instead relied on


                                  -2-
information in the Presentence Report.   Further, Grijalva-Lopez

failed to demonstrate that information found in the Presentence

Report and relied upon by the district court was untrue.    See

United States v. Fitzgerald, 89 F.3d 218, 223 (5th Cir. 1996).

Thus, the district court did not err in finding that Grijalva-

Lopez committed aggravated kidnaping and residential burglary and

departing upwards from the Sentencing Guidelines range.

     Grijalva-Lopez also presents several arguments for the first

time on appeal: (1) that none of the information considered by

the district court falls within the list of enumerated factors in

§ 4A1.3(a)(2)(A)-(E) and therefore should not have been

considered; (2) that his remote convictions are not serious or

similar to the instant offense within the meaning of § 4A1.2; (3)

that even if this court determined that some of the offenses were

serious or similar offenses, the existence of one or two such

convictions did not justify an upward departure; (4) that the

misdemeanor offenses cited by the district court did not evidence

a propensity for violence; and (5) that the extent of the upward

departure was unreasonable and the district court did not

consider intermediate sentencing ranges.

     After a review of these issues for plain error, we find that

Grijalva-Lopez has failed to show that the district court

committed plain error.   See United States v. Vasquez, 216 F.3d

456, 459 (5th Cir. 2000).


                                -3-
     Finally, we defer to the decision of this court in United

States v. Pineiro, No. 03-30437, 2004 WL 1543170 (5th Cir. July

12. 2004) in finding that Grijalva-Lopez’s sentence did not

violate the United States Constitution.

     For the foregoing reasons, the sentence is AFFIRMED.




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