     Case: 10-30149 Document: 00511419632 Page: 1 Date Filed: 03/22/2011




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

                                                 FILED
                                                                           March 22, 2011
                                     No. 10-30149
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

JOSE M. LAERA-HERRERA,

                                                   Defendant - Appellant


                    Appeal from the United States District Court
                        for the Middle District of Louisiana
                              USDC No. 3:08-CR-68-1


Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Jose M. Laera-Herrera appeals the sentence imposed following his guilty
plea conviction for possession with intent to distribute marijuana. The district
court sentenced him to 46 months of imprisonment, which included an upward
departure under U.S. Sentencing Guidelines Manual § 4A1.3 to account for the
inadequacy of his criminal history category.
       Laera-Herrera argues that the district court erroneously applied criminal
history points under Section 4A1.1(d) of the Guidelines, which provides for the

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-30149 Document: 00511419632 Page: 2 Date Filed: 03/22/2011

                                   No. 10-30149

application of two criminal history points if the defendant committed an offense
while under a “criminal justice sentence,” which is defined as including
probation. He contends that the probationary term to which he was subject at
the time of the instant offense should have ended earlier but did not due to the
failure of state authorities to execute a violation of probation warrant. He
asserts that the authorities’ belated execution of the probation violation warrant
violated his due process rights.
      Laera-Herrera’s argument is foreclosed by our decision in United States
v. Anderson, 184 F.3d 479, 480-81 (5th Cir. 1999). In Anderson, we held that an
outstanding probation violation warrant mandated a two-point increase under
the Guidelines despite the lack of effort on the part of the authorities to execute
the warrant. Id. at 481. We determined that the Guidelines do not require us
to consider the diligence of state authorities in executing the warrant. Id.; see
also U.S. Sentencing Guidelines Manual § 4A1.2(m) (noting that a two-point
increase applies under Section 4A1.1(d) to any defendant who commits the
instant offense while a violation warrant from a prior sentence is outstanding).
The district court therefore did not err in applying the two-point increase.
      Laera-Herrera also argues that his 46-month sentence is unreasonable
because the district court relied solely on the extensive nature of his criminal
history. Laera-Herrera asserts that the court did not adequately articulate its
reasons for imposing an upward departure. He also contends that the court
failed to consider other factors that would have justified a more lenient sentence
(e.g., the facts of the instant offense, his acceptance of responsibility).
      Although we ordinarily review sentences for reasonableness under an
abuse of discretion standard, Gall v. United States, 552 U.S. 38, 51 (2007),
because Laera-Herrera did not assert the instant objections in the district court,
review is for plain error only. See United States v. Peltier, 505 F.3d 389, 391-92
(5th Cir. 2007). Given Laera-Herrera’s extensive criminal record, the district
court did not err, plainly or otherwise, by upwardly departing based upon its

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                                   No. 10-30149

finding   that   Laera-Herrera’s    criminal   history   category   substantially
under-represented the seriousness of his criminal history or the likelihood that
he would recidivate. See U.S. Sentencing Guidelines Manual § 4A1.3(a)(1);
United States v. Simkanin, 420 F.3d 397, 418 & n.24 (5th Cir. 2005) (affirming
an upward departure based upon the defendant’s likelihood to recidivate).
      Moreover, contrary to Laera-Herrera’s assertions, the district court gave
oral and written reasons to support its decision to depart. The court specifically
noted that Laera-Herrera had 14 aliases, 46 adult arrests, and 13 documented
convictions; had been arrested six times for offenses involving the trafficking of
illegal drugs; had been convicted for delivery of cocaine and possession of
cocaine; and had 18 criminal convictions for criminal arrests that could not be
counted because of the age of the offenses or because records concerning the
offenses had been destroyed. These reasons were supported by the record and
were permissible under the Guidelines. See United States v. Pennington, 9 F.3d
1116, 1118 (5th Cir. 1993). The reasons also advanced the objectives set forth
in 18 U.S.C. § 3553(a)(2), and were justified by the facts of the case; Laera-
Herrera’s criminal history showed his propensity for recidivism and the lack of
deterrence from prior imprisonment. United States v. Zuniga-Peralta, 442 F.3d
345, 347 (5th Cir. 2006). The record furthermore supports that the district court
had before it the factors that Laera-Herrera alleges were not properly evaluated
and concluded that those factors did not outweigh other sentencing matters
justifying an upward departure. Accordingly, Laera-Herrera has not shown any
error in the district court’s decision to depart upwardly.
      AFFIRMED.




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