     Case: 10-10635 Document: 00511479948 Page: 1 Date Filed: 05/17/2011




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

                                                 FILED
                                                                            May 17, 2011
                                     No. 10-10635
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk




UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

versus

FRANCISCO LUGO-OROSCO,

                                                   Defendant-Appellant.




                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 4:10-CR-11-1




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


       Francisco Lugo-Orosco appeals the sentence imposed following his guilty
plea conviction of illegal reentry into the United States after deportation. Pursu-

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-10635

ant to the November 1, 2009, edition of the sentencing guidelines, Lugo-Orosco’s
advisory guidelines range was 77 to 96 months of imprisonment. Finding that
his criminal history category of VI substantially under-represented the serious-
ness of his criminal history and his likelihood of recidivism, the district court im-
posed a 120-month sentence based on an upward departure under U.S.S.G.
§ 4A1.3.
      Lugo-Orosco challenges his sentence on the ground that the court departed
upwardly under § 4A1.3 only because it granted him credit for acceptance of re-
sponsibility under § 3E1.1. Lugo-Orosco contends that the court erred by doing
so because the inquiry whether a criminal history is under-represented for pur-
poses of § 4A1.3 is independent of the question whether the defendant has ac-
cepted responsibility for purposes of § 3E1.1. Generally, this court reviews a
district court’s interpretation and application of the guidelines de novo and its
factual findings for clear error. United States v. Zuniga-Peralta, 442 F.3d 345,
347 (5th Cir. 2006). A decision to depart upward and the extent of the departure
generally are reviewed for abuse of discretion. Id. at 347.
      The reasons given by the district court for the § 4A1.3 departure, including
its statements that Lugo-Orosco’s criminal history reflected a disregard for the
law, a pattern of habitual criminal conduct, and an unwillingness to change his
behavior, establish that the court believed Lugo-Orosco’s criminal history cate-
gory substantially under-represented the seriousness of his criminal history and
his likelihood of recidivism. The record does not support Lugo-Orosco’s assertion
that the court had a different opinion regarding his criminal history at the begin-
ning of the sentencing hearing or that the court’s opinion changed based on its
awarding of the acceptance-of-responsibility adjustment.          Additionally, the
court’s increase of Lugo-Orosco’s offense level, rather than his criminal history
category, in formulating the departure was proper pursuant to the procedure set
forth under § 4A1.3(a)(4)(B) for structuring upward departures from a criminal
history category of VI.

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      Lugo-Orosco also contends that the court erred in departing upward be-
cause his criminal history category of VI did not under-represent his criminal
history. Relying on two circumstancesSSan error by the district court in calculat-
ing his criminal history score and an amendment to the guidelines after his sen-
tencing hearingSSLugo-Orosco contends that the Sentencing Commission’s own
determinations and empirical research establish that he should have been sen-
tenced based on a criminal history category of V.
      Regarding the miscalculation of his criminal history score, Lugo-Orosco
contends that a sentence imposed for a conviction he sustained in 1998 should
not have been assessed one criminal history point, because it fell outside the
time period set forth under § 4A1.2(e) for counting it as a prior sentence. That
argument is reviewed under the plain-error standard, because it is raised for the
first time on appeal. See United States Gutierrez, 635 F.3d 148, 152 (5th Cir.
2011). To show plain error, the appellant must show a forfeited error that is
clear or obvious and that affects his substantial rights. Puckett v. United States,
129 S. Ct. 1423, 1429 (2009). If the appellant makes such a showing, this court
has the discretion to correct the error, but only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id.
      Pursuant to § 4A1.2(e), adult sentences of 13 months or less are scored on-
ly where they were imposed within 10 years of the defendant’s commencement
of the instant offense. § 4A1.2(e)(2), (3); see United States v. Arviso-Mata, 442
F.3d 382, 385 (5th Cir. 2006). Lugo-Orosco’s original sentence for the 1998
conviction was 24 months of deferred adjudication, but he was later sentenced
to five days of confinement upon revocation of his probation in 2005. Because
Lugo-Orosco’s original and revocation sentences together imposed a total impris-
onment term of five days, the 10-year period under § 4A1.2(e)(2) should have
been measured from the date of his original sentence in 1998. See § 4A1.2(k)(1),
(2)(B)(iii); Arviso-Mata, 442 F.3d at 385. Accordingly, the district court commit-
ted clear or obvious error by assessing one criminal history point relative to

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Lugo-Orosco’s 1998 conviction.
      To show an affect on substantial rights under plain-error review where the
district court misapplied the guidelines, the defendant must demonstrate a “rea-
sonable probability that, but for the district court’s misapplication of the Guide-
lines, he would have received a lesser sentence.” United States v. Jasso, 587
F.3d 706, 713 (5th Cir. 2009) (internal quotation marks and citation omitted).
Because the elimination of this erroneous criminal history point would not have
changed Lugo-Orosco’s guidelines range, this error alone did not affect his sub-
stantial rights.
      Lugo-Orosco, however, contends that the significance of the error is ampli-
fied when considered in connection with Sentencing Guidelines Amendment 742,
which became effective November 1, 2010, over four months after Lugo-Orosco’s
sentencing hearing. It eliminated the assessment of “recency” points, or criminal
history points scored because, among other things, the defendant’s offense of con-
viction was committed less than two years after his release from certain sentenc-
es of imprisonment. Lugo-Orosco asserts that Amendment 742, in conjunction
with elimination of the erroneous criminal history point assessed for his 1998
conviction, would have lowered his criminal history score to 12 and his criminal
history category from VI to V. Relying on that theory, Lugo-Orosco argues that
his criminal history was not under-represented for purposes of § 4A1.3.
      That argument is unavailing. First, Amendment 742 was not applicable
to Lugo-Orosco, because it did not become effective until after his sentencing. See
18 U.S.C. § 3553(a)(4)(A)(ii); § 1B1.11. Second, the calculation of a criminal his-
tory score and the issue whether the defendant’s criminal history is under-
represented are not commensurate inquiries. In providing for departures under
§ 4A1.3, the Sentencing Commission recognized that a defendant’s “criminal his-
tory score is unlikely to take into account all the variations in the seriousness of
criminal history that may occur.” § 4A1.3, comment. (backg’d).
      The sentencing judge is in a superior position to find facts and judge their

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                                  No. 10-10635

import in sentencing a particular defendant. Gutierrez, 635 F.3d at 154. Lugo-
Orosco’s six adult convictions in ten years, not including his instant conviction,
support the findings that he had established a pattern of habitual criminal be-
havior at 35 years old, had not been deterred by past punishments, and had a
high likelihood of committing future crimes. The court did not abuse its discre-
tion in deciding to depart upward. Additionally, the extent of its departure was
not an abuse of discretion. See Gutierrez, 635 F.3d at 155; Zuniga-Peralta, 442
F.3d at 347-38; United States v. Smith, 417 F.3d 483, 492-93 (5th Cir. 2005).
      Lugo-Orosco cites statistics that tend to show that defendants convicted
of immigration offenses in the Northern District of Texas are more likely to re-
ceive upward variances or upward departures than are those convicted of immi-
gration offenses nationally. He argues that the statutory objective under 18
U.S.C. § 3553(a)(6) of avoiding unwarranted sentencing disparities among simi-
lar defendants has floundered in the Northern District and that he likely would
have been sentenced within or below his guidelines range if his conviction had
occurred in almost any other district.
      Although Lugo-Orosco made a general objection to his sentence as unrea-
sonable under § 3553(a), plain-error review applies to this issue, because he did
not alert the district court to this specific argument. See Gutierrez, 635 F.3d at
152. Lugo-Orosco has not shown that any sentencing disparity is unwarranted,
because he provides no information about the particular aggravating or mitigat-
ing facts concerning any other defendant convicted of his offense. See United
States v. Willingham, 497 F.3d 541, 544 (5th Cir. 2007) (“National averages of
sentences that provide no details underlying the sentences are unreliable to de-
termine unwarranted disparity because they do not reflect the enhancements or
adjustments for the aggravating or mitigating factors that distinguish individual
cases.”). Thus, Lugo-Orosco has not shown error, plain or otherwise, regarding
this issue.
      AFFIRMED.

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