UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 98-30144
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANCISCO LOZA-INIGUEZ, also known as Juan Gutierrez-
Martinez, also known as Salvador Gutierrez-Martinez, also known as
Salvadore Gutteriz,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Louisiana
(96-CR-115-1-S)
February 11, 1999
Before EMILIO M. GARZA, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Francisco Loza-Iniguez (“Loza”) appeals his conviction and sentence for illegal re-entry into
the United States, in violation of 8 U.S.C. § 1326(a) and (b). Loza argues that the district court erred
in determining that he was competent to stand trial, that the court erred in admitting extrinsic-act
evidence showing that he had been deported on eight prior occasions, and that the court abused its
discretion in departing upward from the sentencing range prescribed by the Sentencing Guidelines.
A district court’s determination of competency to stand trial may not be set aside unless it is
“clearly arbitrary or unwarranted.” United States v. Dockins, 986 F.2d 888, 890 (5th Cir. 1993). The
district court’s finding that Loza was competent to stand trial was supported by the opinions of two
psychiatrists and by the district court’s own observations of the defendant. Consequently, that finding
*
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 R. 47.5, the court has determined that this opinion should not be published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.
was not arbitrary or unwarranted, and must be upheld.
We review a district court’s evidentiary rulings for abuse of discretion. See United States v.
LeBaron, 156 F.3d 621, 624 (5th Cir. 1998). To admit evidence of prior bad acts, that evidence (1)
must be relevant to an issue other than the defendant’s character, and (2) must have probative value
that is not substantially outweighed by undue prejudice. See United States v. Misher, 99 F.3d 664,
670 (5th Cir. 1996), citing FED. R. EVID. 404(b). By asserting an insanity defense, Loza put his
intent at issue. Evidence of Loza’s repeated prior re-entries and deportations tended to prove that
Loza’s presence in the United States was intentional. See United States v. Osum, 943 F.2d 1394,
1404 (5th Cir. 1991). It therefore undermined his insanity defense.
Furthermore, the temporal remoteness of some of the deportations admitted did not fatally
diminish their probity. Although some of the deportations admitted were eighteen and nineteen years
old, one was only three years old. The age of prior bad acts “has never been held to be a per se bar
to its use.” United States v. Hernandez-Guevara, ___ F.3d ___, No. 97-50946, 1998 WL 856888,
at *7 (5th Cir. Dec. 11, 1998). We have upheld the admission of prior bad acts that were eighteen
years old where, as here, those acts “involve exactly the same crime as was charged,” i.e., illegal entry
into the United States. Id. Finally, the evidence of Loza’s prior bad acts was not unduly prejudicial
where the only disputed issue is Loza’s intent. See Osum, 943 F.2d at 1404. Thus the district court
did not abuse its discretion in admitting evidence of Loza’s prior deportations.
We review a district court’s decision to depart upward from the Sentencing Guidelines for
abuse of discretion. See United States v. Ashburn, 38 F.3d 803, 807 (5th Cir. 1994) (en banc). The
Guidelines authorize an upward departure when “reliable information indicates that the criminal
history category does not adequately reflect the seriousness of the defendant’s past criminal conduct
or the likelihood that the defendant will commit other crimes. . . .” U.S.S.G. § 4A1.3. The district
court found that “[Loza’s] extensive criminal history is of the kind and to the degree that had not
been adequately taken into considerat ion by the Sentencing Guidelines.” It based this finding on
Loza’s ten prior deportations and seven prior convictions, which included violent crimes and drug-
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related offenses and spanned three states. Such behavior is adequate grounds for an upward
departure. See United States v. Rosogie, 21 F.3d 632, 634 (5th Cir. 1994) (upholding an upward
departure where defendant had been convicted and deported numerous times and committed crimes
in several states). Thus the district court’s decision to upwardly depart from the Guidelines was not
an abuse of discretion.
AFFIRMED.
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