UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 00-20796
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United States of America,
Plaintiff-Appellee,
v.
Filiberto Velasquez-Rojas,
aka Pedro Gonzales, III, aka John Doe,
aka Filiberto Rojas Velazquez,
aka Pedro Gonzales, III,
Defendant-Appellant.
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Appeal from the United States District Court
For the Southern District of Texas
(H-00-CR-255-1)
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February 12, 2001
Before REYNALDO G. GARZA, DAVIS, and JONES, Circuit Judges.
PER CURIAM:*
Filiberto Velasquez-Rojas plead guilty to one count of making
a false statement in an application for a passport in violation of
18 U.S.C. § 1542 and one count of possession of a false
identification document with intent to use such document to defraud
the United States in violation of 18 U.S.C. § 1028(a)(4). The
district court determined a total offense level of 6 for these
charges, which corresponded to an imprisonment range of 0 to 6
months. However, the district court decided to depart upward to a
total offense level of 10, which corresponded to an 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this opinion should not be published and is not precedent except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.
range of 6 to 12 months. The district court did so on the grounds
that the harm done to Pedro Gonzales, III, whose identity
Velasquez-Rojas had assumed, would otherwise go unpunished.
Accordingly, the district court sentenced Velasquez-Rojas to
concurrent sentences of 12 months imprisonment and 3 years
supervised release on each count, concurrent fines of $2000 on each
count, and a special assessment of $200.
Velasquez-Rojas now appeals his sentence on the grounds that
there was no evidence to support the district court’s upward
departure in this case and that there are no features of this case
to remove it from the “heartland” of cases arising under U.S.S.G.
§ 2L2.2. Because we find that the district court did not abuse its
discretion in departing upward in this case, we affirm Velasquez-
Rojas’ sentence.
We review a district court’s decision to depart from the
Sentencing Guidelines for an abuse of discretion. Koon v. United
States, 518 U.S. 81, 98 (1996). The PSR, the factual findings of
which the district court adopted, established that the true Pedro
Gonzales, III, whose identity Velasquez-Rojas adopted, was assessed
back taxes and penalties by the IRS in 1998 that he did not owe as
a result of Velasquez-Rojas using Gonzales’ social security number
as his taxpayer identification number. Gonzales also had problems
claiming unemployment benefits for the same reason. The PSR also
established that Velasquez-Rojas bought merchandise on credit he
obtained in Gonzales’ name, thereby damaging Gonzales’ credit
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history. Factual findings in a PSR are sufficient to support a
district court’s factual findings for sentencing purposes. United
States v. Alford, 142 F.3d 825, 831 (5th Cir. 1998). Velasquez-
Rojas did not object to these findings in the district court and
does not establish that they were plainly erroneous now.
Whether a case falls within the “heartland” of cases
encompassed by a particular provision of the Sentencing Guidelines
is entrusted to the discretion of the district court. Koon, 518
U.S. at 93. When a particular provision of the Sentencing
Guidelines does not take into account certain encouraged factors,
and when those factors are present in a particular case, then the
district court may depart upward at its discretion. Koon, 518 U.S.
at 96. § 2L2.2 of the Sentencing Guidelines, which is applicable
to this case, does not take into account loss to a person whose
identity is assumed by a defendant. Such loss is also an
encouraged factor for departure per § 5K2.5 of the Sentencing
Guidelines. Neither does § 2L2.2 take into account its subject
offense being committed to facilitate another criminal purpose. In
this case, Velasquez-Rojas committed these offenses to facilitate
his use of Gonzales’ social security number, in violation of 42
U.S.C. § 408. § 5K2.9 of the Sentencing Guidelines encourages
departure for these reasons.
The district court properly found that Gonzales was harmed by
the actions of Velasquez-Rojas. These harms would not otherwise be
punished unless the district court departed upward in its sentence.
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Accordingly, the judgment of the district court is AFFIRMED.
AFFIRMED.
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