     Case: 09-50148     Document: 00511043441          Page: 1    Date Filed: 03/05/2010




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

                                                  FILED
                                                                            March 5, 2010

                                     No. 09-50148                      Charles R. Fulbruge III
                              consolidated with 09-50149                       Clerk



UNITED STATES OF AMERICA

                                                   Plaintiff - Appellee
v.

JOSE RAFAEL GUERRA

                                                   Defendant - Appellant




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:08-CR-369-1


Before KING, JOLLY, and STEWART, Circuit Judges.
PER CURIAM:*
        Jose Rafael Guerra appeals following his guilty-plea conviction and
sentencing for possession of a firearm by a convicted felon and the revocation of
his supervised release. Guerra was sentenced to 120 months of imprisonment for
possession of the firearm and a consecutive 24-month term of imprisonment for
violating his supervised release. Guerra challenges the above-guidelines
sentence for possession of the firearm, arguing that it is unreasonable because


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-50148

it is greater than necessary to satisfy the sentencing goals in 18 U.S.C. § 3553(a).
We AFFIRM the sentence.
               I. FACTUAL AND PROCEDURAL HISTORY
      On June 29, 2008, officers received a complaint that Guerra had
burglarized a residence and interfered with an emergency telephone call earlier
that day. When officers came to Guerra’s residence to investigate the complaint,
Guerra barricaded himself in a bedroom, warned that “it would be bloody” if the
officers entered, and threatened to commit suicide. The officers saw Guerra
holding a handgun. Guerra surrendered after a one-hour standoff and was
placed under arrest for the burglary and interference charges. He was later
released on bond.
      On July 3, 2008, Guerra was arrested on a federal warrant for violating
his supervised release from a prior conviction for aiding and abetting the
importation of marijuana. During the course of his arrest, Guerra assaulted one
of the officers. That same day, Guerra managed to escape from the county jail
and fled to Mexico. Guerra was rearrested several days later when he tried to
reenter the United States.
      Guerra was then indicted for and pleaded guilty to possession of a firearm
in violation of 18 U.S.C. § 922(g)(1) while he was on supervised release. The
presentence report (PSR) assessed an advisory Sentencing Guideline range of 46
to 57 months imprisonment. The statutory maximum term of imprisonment was
120 months. 18 U.S.C. § 924(a)(2). The PSR did not specifically recommend
departing from the guidelines, but did detail Guerra’s extensive history of
criminal activity, and listed a number of pending state charges which could
warrant a departure under U.S.S.G. § 4A1.3. The PSR also noted the factors for
departure under § 3553(a).
      At the sentencing hearing, the district court began by reciting Guerra’s
criminal history from the age of 12 to 22, characterizing it as “absolute, constant


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criminal conduct.” At age 12, Guerra had been convicted of theft and he twice
had probation revoked by the Texas Youth Commission. At age 17, he was
convicted of forgery and served six months imprisonment. At age 18, he was
arrested for driving while intoxicated and received probation. Just two months
later, in October 2004, he was arrested for aggravated assault after stabbing a
person in the back, and he again received probation. In January 2005, he was
arrested and later convicted in federal court for assisting in the importation of
marijuana; he received a sentence of 30 months imprisonment. In March 2007,
he received supervised release after serving approximately two years, and within
a month of his release he was arrested for driving with a suspended license and
was found to be using cocaine. His supervised release continued, and during the
next six months he was arrested two more times for driving with a suspended
license. In November 2007, he was advised to attend counseling sessions at least
once per month, but he failed to attend during January, March, and April 2008.
In May 2008, he was arrested for bail jumping and again tested positive for
cocaine. On June 24, 2008, at age 22, Guerra appeared before the district court
for a revocation hearing due to his ongoing drug use, and the court continued the
supervised release with the imposition of additional conditions and supervision.
      The district court noted the numerous instances in which Guerra violated
a term of probation or supervised release, and stated that it was inclined to
increase Guerra’s sentence because “[i]t doesn’t appear that incarceration has
any effect on [him].” Guerra’s counsel requested a guidelines sentence and asked
the district court “to consider not departing upward significantly,” given the 24-
month sentence to be imposed for the supervised release violation. Guerra’s
counsel asked the district court to consider Guerra’s difficult life; that his youth
made him amenable to rehabilitation; and his mental health conditions,
including depression and adolescent conduct disorder. Guerra himself requested




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that the court consider the age of his young son, his difficult upbringing, and the
fact that a long term of imprisonment would just “corrupt [him] more.”
      The district court responded that it had taken Guerra’s age into
consideration when it continued his supervised release on June 24, 2008, but
Guerra then committed the possession offense days later. The court expressed
its concern about “the nature and circumstances of the offense, a felon in
possession of a firearm, threatening policemen who are just serving a warrant,
trying to arrest you for the violent crime that you just committed.” The court also
noted that Guerra also had other parole revocations pending. The court then
found that Guerra’s history demonstrated that he is a danger to the public, and
concluded that a variance was justified under § 3553.
      When the court began to pronounce sentence, Guerra punched the lectern
and shouted a string of expletives. United States Marshals had to restrain him
so that the court could complete the sentencing. The court then stated the
sentence of 120 months of imprisonment and three years of supervised release
for the possession offense, and 24 months of imprisonment for the supervised
release violation to be served consecutive to the 120-month term of
imprisonment. Guerra filed timely notices of appeal as to both sentences.
                                II. DISCUSSION
      A. Reasonableness of the Above-Guideline Sentence
      Guerra argues that the sentence imposed by the district court is
unreasonable because it was greater than necessary to effectuate the sentencing
goals of 18 § U.S.C. 3553(a). Guerra does not argue that the district court
committed any procedural error in imposing his sentence, therefore we examine
only the substantive reasonableness of the sentence. Gall v. United States, 552
U.S. 38, 51 (2007). We “consider the substantive reasonableness of the sentence
imposed under an abuse-of-discretion standard.” Id. When reviewing a sentence
for substantive reasonableness, “the court will . . . take into account the totality


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                                     No. 09-50148

of the circumstances, including the extent of any variance from the Guidelines
range.” Id. “[I]f the sentence is outside the Guidelines range, the court may not
apply a presumption of unreasonableness. It may consider the extent of the
deviation, but must give due deference to the district court’s decision that the §
3553(a) factors, on a whole, justify the extent of the variance.” Id. The fact that
we “might reasonably have concluded that a different sentence was appropriate
is insufficient to justify reversal of the district court.” Id.
      “A defendant’s criminal history is one of the factors that a court may
consider in imposing a non-Guideline[s] sentence.” United States v. Smith, 440
F.3d 704, 709 (5th Cir. 2006); see U.S.S.G. § 1B1.4 (noting that “[i]n determining
. . . whether a departure from the guidelines is warranted, the court may
consider, without limitation, any information concerning the background,
character and conduct of the defendant, unless otherwise prohibited by law”).
The district court articulated sufficient reasons to justify the upward departure
consistent with the § 3553(a) factors. Smith, 440 F.3d at 707. The district court
determined that the maximum statutory sentence was necessary in light of the
seriousness of the crimes before the court, Guerra’s criminal history, and the
need to afford adequate deterrence, to promote respect for the law, and to protect
the public from further crimes. See § 3553(a). With respect to the extent of the
departure, the sentence imposed exceeds the advisory guidelines range by 111%.
We have previously affirmed an upward departure of 122% where the underlying
circumstances     rendered     the    sentence   reasonable.      United   States     v.
Herrera-Garduno, 519 F.3d 526, 531-32 (5th Cir. 2008). Our review of the
district court’s individualized reasons for the upward departure and the
sentencing transcript as a whole, convince us that Guerra’s sentence is not
unreasonable and that the district court did not abuse its discretion in
sentencing Guerra to 120 months of imprisonment.



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      B. Constitutionality of 18 U.S.C. § 922(g)(1)
      In order to preserve the argument for further review, Guerra contends
that § 922(g)(1) does not require a substantial effect on interstate commerce and
is, therefore, unconstitutional under United States v. Lopez, 514 U.S. 549 (1995);
United States v. Morrison, 529 U.S. 598 (2000); and Jones v. United States, 529
U.S. 848 (2000). As Guerra concedes, his argument is foreclosed by our
precedent. See United States v. Daugherty, 264 F.3d 513, 518 (5th Cir. 2001);
United States v. Rawls, 85 F.3d 240, 242 (5th Cir. 1996).
                              III. CONCLUSION
      For the foregoing reasons, the judgments of the district court are
AFFIRMED.




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