Case: 18-20121       Document: 00514782711         Page: 1     Date Filed: 01/04/2019




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


                                     No. 18-20121
                                                                                  FILED
                                                                            January 4, 2019
                                   Summary Calendar
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

JOSE ANTONIO CERDA-MENDEZ,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:17-CR-599-1


Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Jose Antonio Cerda-Mendez appeals the sentence imposed following his
guilty plea conviction for illegal reentry, in violation of 8 U.S.C. § 1326(a),
(b)(1). Cerda’s advisory Sentencing Guidelines range of imprisonment was 24
to 30 months. The district court departed upwardly pursuant to Guideline
§ 4A1.3 and imposed, inter alia, 60-months’ 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       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
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                                  No. 18-20121

      Cerda contends: the court procedurally erred by failing to explain
adequately its decision to deviate 30 months above the advisory Guidelines
sentencing range; and, his sentence was substantively unreasonable as too
much emphasis was placed on his prior unprosecuted deportations and
removals from the United States.
      Although post-Booker, the Sentencing Guidelines are advisory only, the
district court must avoid significant procedural error, such as improperly
calculating the Guidelines sentencing range. Gall v. United States, 

, 48–51 (2007). If no such procedural error exists, a properly preserved
objection to an ultimate sentence is reviewed for substantive reasonableness
under an abuse-of-discretion standard. Id. at 51; United States v. Delgado-
Martinez, 

, 751–53 (5th Cir. 2009). Reasonableness review, in the
context of a departure, requires us to evaluate both “the district court’s decision
to depart upwardly and the extent of that departure for abuse of discretion”.
United States v. Zuniga-Peralta, 

, 347 (5th Cir. 2006) (internal
quotation marks and citation omitted). In that respect, for issues preserved in
district court, its application of the Guidelines is reviewed de novo; its factual
findings, only for clear error. E.g., United States v. Cisneros-Gutierrez, 

, 764 (5th Cir. 2008).
      For the claimed procedural error, the court’s statements both at
sentencing and in the statement of reasons were sufficient to support the
departure. The court adopted the presentence investigation report, which
stated an upward departure might be appropriate under Guideline § 4A1.3
based on underrepresentation of Cerda’s criminal history; and, the court
explained it was departing upward based on Cerda’s “egregious criminal
history”: his seven prior convictions for driving while intoxicated and his five
prior unprosecuted deportations and removals.



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                                  No. 18-20121

      While the court did not explicitly consider on the record each
intermediate offense level, see United States v. Lambert, 

, 662–63
(5th Cir. 1993) (en banc), it is clear from its explanation for the departure that
it determined both the extent and nature of Cerda’s criminal history, including
his five prior unprosecuted deportations and voluntary removals not resulting
in criminal convictions, warranted no less than an increase to 60 months’
imprisonment. See United States v. Ashburn, 

, 809–10 (5th Cir.
1994) (en banc); United States v. Davila-Martinez, 464 F. App’x 247, 249–50
(5th Cir. 2012) (approving upward departure to 60 months’ imprisonment
based, in part, on prior illegal reentries for which defendant was not
prosecuted). Nor was the size of the departure so drastic as to require an
“explanation in careful detail” of the reasons why lesser offense levels were
inadequate. See Ashburn, 38 F.3d at 809–10 (internal quotation marks and
citation omitted).
      Regarding the claimed substantive unreasonableness, given Cerda’s
lengthy criminal history, including his multiple unscored deportations and
removals, his challenge to the departure is unavailing.            See U.S.S.G.
§ 4A1.3(a)(1); Zuniga-Peralta, 442 F.3d at 347–48. Accounting for the full
nature and extent of Cerda’s criminal history advances the objectives provided
in 18 U.S.C. § 3553(a)(2), particularly affording adequate deterrence and
protecting the public; and the departure is justified by the facts. See 18 U.S.C.
§ 3553(a)(2)(B), (C); Zuniga-Peralta, 442 F.3d at 347–48. Moreover, the extent
of the departure was well-within the range of departures our court has upheld.
See United States v. Brantley, 

, 348–50 (5th Cir. 2008) (affirming
upward departure or variance to 180 months where the top of the Guidelines
sentencing range was 51 months); Zuniga-Peralta, 442 F.3d at 346–48




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                                No. 18-20121

(affirming upward departure to 60 months from the 27 to 33 months’
Guidelines sentencing range).
     AFFIRMED.




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