     Case: 19-40396      Document: 00515190481         Page: 1    Date Filed: 11/07/2019




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

                                                                               FILED
                                    No. 19-40396                        November 7, 2019
                                  Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

PEDRO ARTEMIO SAENZ-GONZALEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:18-CR-2035-1


Before STEWART, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM: *
       Pedro Artemio Saenz-Gonzalez appeals the sentence imposed following
his conviction for being found in the United States after previous deportation
in violation of 18 U.S.C. § 1326(a) and (b). The district court sentenced him to
16 months of imprisonment. The sentence represented an upward departure
under U.S.S.G. § 4A1.3 and an upward variance based on the sentencing
factors under 18 U.S.C. § 3553(a).


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-40396    Document: 00515190481     Page: 2   Date Filed: 11/07/2019


                                 No. 19-40396

      Saenz-Gonzalez argues that the sentence was procedurally unreasonable
because the district court failed to follow the requisite method of calculating
the departure; erroneously considered prior arrests; overemphasized an
unscored prior rape conviction from outside the relevant time frame; and failed
to consider his assistance in prosecuting a human trafficker. Saenz-Gonzalez
did not object to the specific grounds he raises here. Thus, plain error review
applies to his arguments. See Puckett v. United States, 556 U.S. 129, 135
(2009).
      Saenz-Gonzalez’s argument regarding the district court’s method of
calculating the departure is without merit because the district court’s reasons
for rejecting intermediate criminal history categories were implicit in its
explanation for its upward departure. See United States v. Zuniga-Peralta,
442 F.3d 345, 347-48 & n.2 (5th Cir. 2006). Additionally, the district court was
not required to mechanically discuss each criminal history category it rejected.
See United States v. Lambert, 984 F.2d 658, 663 (5th Cir. 1993) (en banc). As
to the prior arrests, the district court’s consideration of the arrests was
permissible given that the facts of the conduct leading up to the arrests were
recited in the presentence report. See United States v. Windless, 719, F.3d 415,
420 (5th Cir. 2013). Moreover, the arrests were not merely arrests. Citations
and failure to appear warrants were issued for the offenses. As to the district
court’s emphasis of the unscored prior rape conviction, § 4A1.3(a)(2)(A) states
that prior sentences not used in computing the criminal history score may
provide a basis for an upward departure. Finally, the district court did not fail
to consider Saenz-Gonzalez’s assistance in prosecuting a human trafficker
because the district specifically mentioned that point at the sentencing
hearing.




                                       2
    Case: 19-40396    Document: 00515190481     Page: 3   Date Filed: 11/07/2019


                                 No. 19-40396

      Saenz-Gonzalez also argues that his sentence was substantively
unreasonable because he has not exhibited a pattern of criminal behavior, a
pattern of increasingly violent crime, a continued disregard for the law, or an
unwillingness to change his behavior. Although Saenz-Gonzalez did not object
to the substantive reasonableness of his sentence below, and review is for plain
error, see United States v. Peltier, 505 F.3d 389, 390, 392 (5th Cir. 2007), his
sentence is substantively reasonable under any standard of review.
      The record supports a determination that the district court had an
adequate basis for the sentence imposed and was guided by the § 3553(a)
factors in determining that a sentence above the guidelines was justified. The
district court stated that it had considered the § 3553(a) factors, and, notably,
Saenz-Gonzalez’s prior history consisted of a prior rape conviction and
repeated reentries into the United States. Additionally, his sentence, which
was 10 months above the top of the applicable advisory guidelines range, was
not so disproportionate as to overcome the factors that warranted its
imposition. See United States v. Brantley, 537 F.3d 347, 348-50 (5th Cir. 2008).
            AFFIRMED.




                                       3
