     Case: 10-40170 Document: 00511340629 Page: 1 Date Filed: 01/05/2011




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

                                                 FILED
                                                                           January 5, 2011
                                     No. 10-40170
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

OSCAR PENA,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 2:09-CR-865-1


Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
       Oscar Pena appeals his sentence following his guilty plea conviction for
transporting an undocumented alien within the United States by means of a
motor vehicle. Pena was sentenced to sixty months of imprisonment and three
years of supervised release. His sentence constituted an upward departure,
pursuant to U.S.S.G. § 4A1.3, from his advisory guidelines range of twenty-one
to twenty-seven months of imprisonment.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-40170 Document: 00511340629 Page: 2 Date Filed: 01/05/2011

                                  No. 10-40170

      Although Pena’s plea agreement contained a provision waiving his right
to appeal his sentence, he reserved the right to appeal an upward departure
from the Sentencing Guidelines that had not been requested by the Government.
Here, the district court upwardly departed above the advisory guidelines range
even though the Government requested a sentence within that range. Because
the district court upwardly departed without a Government recommendation,
the exception to the waiver provision applies.
      Pena argues that the district court imposed an unreasonable sentence by
opting to depart upwardly under § 4A1.3. He contends that the court justified
its decision to depart upwardly upon prior convictions and prior conduct that did
not count for criminal history purposes, and which were poor predictors of his
recidivism or his criminality. Pena also maintains that his criminal history does
not illustrate a penchant for violence, and that his instant offense was
nonviolent in nature.
      Following United States v. Booker, 543 U.S. 220 (2005), sentences are
reviewed for reasonableness in light of the sentencing factors in 18 U.S.C.
§ 3553(a). See United States v. Mares, 402 F.3d 511, 519-20 (5th Cir. 2005).
Reasonableness review, in the context of a guidelines departure, requires this
court to evaluate both the decision to depart upward and the extent of the
departure for an abuse of discretion. United States v. Zuniga-Peralta, 442 F.3d
345, 347 (5th Cir. 2006). An upward departure is not an abuse of discretion if
the reasons for the departure advance the objectives of 18 U.S.C. § 3553(a)(2)
and are justified by the particular facts of the case. Id.
      In this case, the district court did not abuse its discretion in imposing an
upward departure based on its conclusion that Pena’s criminal history score
under-represented the seriousness of his past convictions and the likelihood that
he would continue his pattern of criminal activity. See Zuniga-Peralta, 442 F.3d
at 347-48 (5th Cir. 2006). The district court’s stated reasons for the departure–
i.e., Pena’s pattern of habitual criminal behavior, the lack of deterrence from his

                                        2
    Case: 10-40170 Document: 00511340629 Page: 3 Date Filed: 01/05/2011

                                   No. 10-40170

prior sentences, his disregard for the law, his unwillingness to change his
behavior, and the likelihood that he would commit future crimes– advance the
objectives set forth in § 3553(a)(2). Zuniga-Peralta, 442 F.3d at 347; § 3553(a)(2).
Likewise, the facts of the case justified the departure. Zuniga-Peralta, 442 F.3d
at 347. Pena previously was convicted of burglary of a habitation, murder, and
aggravated assault, and was not assigned any criminal history points for those
convictions because of their age. Further, he was involved in other serious
criminal conduct, including burglary of a habitation, murder, and making
terroristic threats, for which he was not ultimately convicted. Thus, the district
court’s decision to depart upwardly was permissible. Pena’s convictions and
conduct, regardless of their recency, were evidence of serious criminal conduct
and were relevant to several § 3553(a) factors, including his violent history and
the need for the sentence to provide just punishment and to protect the public.
See U.S.S.G. § 4A1.2(e) cmt. n.8; United States v. Beasley, 90 F.3d 400, 403 (9th
Cir. 1996).
      Pena also argues that the sentence imposed was unreasonable because the
district court failed to give weight to his drug addiction, which he contends
should have been considered as an explanation for his criminal history. He
asserts that his past drug abuse explains his criminality and should have been
evaluated by the district court as part of his personal history and characteristics.
However, the record supports that Pena’s history of drug use was fully before the
district court. The court’s decision to impose an upward departure despite
having knowledge of Pena’s drug addiction constituted an implicit rejection of
Pena’s assertion that he was entitled to sentencing leniency on this basis. See
United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006). The district court
exercised its discretion and decided to place greater emphasis on factors that
favored an upward departure rather than those that might favor a more lenient
sentence.



                                         3
       Case: 10-40170 Document: 00511340629 Page: 4 Date Filed: 01/05/2011

                                   No. 10-40170

        Pena also argues that the extent of the departure– thirty-three months
above the top of his advisory guidelines range– was excessive. He asserts that
the departure caused a disparity between him and similarly situated defendants,
and denied him credit for acceptance of responsibility.          The extent of the
departure is reviewed for abuse of discretion. See Zuniga-Peralta, 442 F.3d at
347.
        This court has upheld upward departures of the same extent and of
greater magnitude. See, e.g., United States v. Herrera-Garduno, 519 F.3d 526,
531-32 (5th Cir. 2008) (affirming upward departure from guidelines range of
twenty-one to twenty-seven months, to sixty months when underlying
circumstances rendered guidelines sentence unreasonable); Zuniga-Peralta, 442
F.3d at 347-48 (upholding a departure from thirty-three to sixty months where
defendant had, inter alia, prior uncounted offenses and deportations); United
States v. Jones, 444 F.3d 430, 433, 442 (5th Cir. 2006) (upholding 120-month
sentence where maximum of guidelines range was fifty-seven months). That we
might conclude that a different sentence is appropriate “is an insufficient
justification for reversal of the district court, because the sentencing judge is in
a superior position to evaluate the § 3553(a) factors.”           United States v.
Armstrong, 550 F.3d 382, 405 (5th Cir. 2008) (citation omitted). Pena has not
identified any similarly situated defendants who received a lesser sentence or
shown that any disparity created by the sentence imposed in this case was
unwarranted in light of his criminal history and history of recidivism. See §
3553(a)(6). Moreover, in light of all the facts, the district court did not abuse its
discretion in departing upwardly based upon Pena’s criminal history despite his
acceptance of responsibility for this offense. Pena therefore has not shown that
the sixty-month sentence was an abuse of discretion. See Zuniga-Peralta, 442
F.3d at 347-48.
        AFFIRMED.



                                         4
