Case: 10-20501 Document: 00511478287 Page: 1 Date Filed: 05/16/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 16, 2011
No. 10-20501
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MANUEL BORJA-VEGA, also known as Samuel Vega, also known as Carlos
Ortega, also known as Miguel Gomez-Borja, also known as Andres M. Orrostieta,
also known as Bertin Aveja Granados, also known as Nau Berduzco-Pena, also
known as Navor Reynosa Vega,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:10-CR-82-1
Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Manuel Borja-Vega (Borja) pleaded guilty to illegal reentry by a previously
deported alien following a conviction for an aggravated felony and was sentenced
to 132 months of imprisonment. He now appeals his sentence, which was based
on an upward departure under U.S.S.G. § 4A1.3, arguing that it is unreasonable
because it is greater than necessary to effectuate the sentencing goals set forth
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-20501
in 18 U.S.C. § 3553(a). Because he has preserved the issue on appeal, we review
the district court’s decision to depart upwardly under § 4A1.3 for abuse of
discretion. See United States v. Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir.
2006).
We review sentences for reasonableness in light of the factors set out in
§ 3553(a). Gall v. United States, 552 U.S. 38, 49-51 (2007). The record reflects
that Borja’s sentence was a departure authorized by the advisory sentencing
guidelines pursuant to § 4A1.3, based on the inadequacy of Borja’s criminal
history. In determining that Borja’s criminal history was under-represented, the
district court noted that many of Borja’s criminal convictions— including
numerous convictions for driving while intoxicated, as well convictions for
evading arrest and unlawfully carrying a weapon — were not scored in the
presentence report because of their age. The district court concluded that the
revised guidelines range was inadequate to meet the requirements of the
sentencing factors set forth in § 3553(a) and considered Borja’s history and
characteristics, as well as the need for the sentence to provide just punishment,
to promote respect for the law, to protect the public, and to deter future criminal
conduct in determining Borja’s sentence. The district court noted that neither
the leniency that Borja previously received nor the 87-month prison term that
was previously imposed following a prior conviction for illegal reentry had any
deterrent effect. The district court further concluded that Borja’s use of more
than a dozen aliases and several different birth dates and social security
numbers to avoid detection reflected the likelihood of further recidivism.
We conclude that the district court’s decision to depart upwardly was
permissible under the Guidelines and that the departure was based on
permissible factors that advanced the objectives set forth in § 3553(a) and were
justified by the facts of the case. See Zuniga-Peralta, 442 F.3d at 347; see also
United States v. Beasley, 90 F.3d 400, 403 (5th Cir. 1996) (holding that district
court did not err in considerinojrag defendant’s six remote prior convictions in
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No. 10-20501
evaluating the adequacy of his criminal history). Based on the totality of the
circumstances, the sentence did “not account for a factor that should have
received significant weight” or “represent[] a clear error of judgment in balancing
the sentencing factors.” See United States v. Smith, 440 F.3d 704, 708 (5th Cir.
2006).
Moreover, although Borja’s 132-month sentence is 45 months more than
the top of his guidelines range (87 months), we have affirmed similar and more
substantial departures, and we conclude that the degree of the departure in this
case was not unreasonable under the circumstances. See, e.g., United States v.
Herrera-Garduno, 519 F.3d 526, 531-32 (5th Cir. 2008) (affirming upward
departure from guidelines range of 21 to 27 months to 60 months when
underlying circumstances rendered sentence unreasonable); United States v.
Brantley, 537 F.3d 347, 349-50 (5th Cir. 2008) (upholding an upward departure
or variance to 180 months from an advisory maximum of 51 months); United
States v. Jones, 444 F.3d 430, 433, 441-42 (5th Cir. 2006) (affirming an upward
departure to 120 months from a range of 46 to 57 months).
Accordingly, the judgment of the district court is AFFIRMED.
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