IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50035
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ALEGRIA, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
(A-00-CR-168)
July 23, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Jose Alegria, Jr., appeals his sentence from his plea of
guilty of distribution of more than 500 grams of cocaine.1 In
sentencing Alegria, the district court departed upward and
sentenced him to 210 months’ imprisonment. We affirm.
*
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should not be published and is not precedent except under the limited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.
1
See 21 U.S.C. § 841(a)(1).
I
In this case, the district court briefly explained the reasons
for departing:
I find, specifically on the record before me, that the
Criminal History Category of VI did not accurately reflect the
seriousness of this defendant’s conduct or the likelihood that
he will commit other crimes.
He has eight drug convictions, three unlawful carrying weapon
convictions, a terrorist threat conviction, evading arrest,
two DWI pending cases, and driving while suspended is one of
those, and 19 other cases, 14 of which we can’t even find
dispositions of.
The “19 other cases” the court mentioned were Alegria’s 19 arrests
between 1993 and 1997. The PSR did not indicate that any of these
arrests resulted in conviction. Alegria’s offense level of 27 and
criminal history category of VI yielded a sentencing range of 120
to 162 months. The district court departed upwards 3 levels and
sentenced Alegria to 210 months, the maximum of the resulting
range.
II
At sentencing, the district court must “state in open court
the reasons for its imposition of the particular sentence.”2 When
the district court departs from the sentencing range prescribed by
the Sentencing Guidelines, the court must state its specific reason
for the departure.3 We review a district court’s imposition of
2
United States v. Ashburn, 38 F.3d 803, 807 (5th Cir. 1994) (en banc)
(quoting 18 U.S.C. § 3553(c)).
3
See Ashburn, 38 F.3d at 807.
2
sentence, including an upward departure, for abuse of discretion.4
The district court does not abuse its discretion in departing from
the Guidelines “if the district court offers ‘acceptable reasons’
for the departure and the departure is ‘reasonable.’”5
The district court correctly concluded that the Guidelines
expressly 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.”6
Although the Guidelines forbid the consideration of the
defendant’s prior arrest record7 and the district court mentioned
the defendant’s arrest record, we cannot conclude after review of
the entire record of the sentencing that the district court relied
on the arrest record in departing upward. Alegria had 12 prior
convictions, resulting in 16 criminal history points.8 Alegria’s
sentences for his past conduct were very brief, and thus the
district court was justified in concluding that Alegria’s criminal
history score did not adequately reflect the seriousness of his
4
See id.
5
Id.
6
U.S.S.G. § 4A1.3.
7
U.S.S.G. § 4A1.3 (“[A] prior arrest record itself shall not be considered
under § 4A1.3.”).
8
Four of the convictions were not counted as separate sentences for
purposes of the Sentencing Guidelines. See U.S.S.G. §§ 4A1.1, 4A1.2(a)(2).
3
record. Further, the district court’s comments about Alegria’s
arrests were merely in response to argumentation by the defense.9
III
Alegria also argues that the district court failed to comply
with the requisite methodology for determining the extent of the
departure and that the extent of the departure was unreasonable.
When making an upward departure above criminal history category VI
pursuant to section 4A1.3, the district court should consider each
incremental offense level and explain why the resulting range from
each lower offense level is inadequate and why the chosen level is
appropriate.10 This court does not, however, ordinarily “require
the district court to go through a ritualistic exercise in which it
mechanically discusses each” rejected offense level on the way to
the selected level.11
Although in this case the district court did not explicitly
address each possible offense level, the district court’s analysis
was implicit and sufficient. The district court raised Alegria’s
offense level by one for each criminal history point in excess of
the threshold for category VI.12
9
For the same reasons, even if there was error, the error was harmless.
See Williams v. United States, 503 U.S. 193, 203 (1992).
10
See United States v. Lambert, 984 F.2d 658, 662-63 (5th Cir. 1993) (en
banc).
11
Id. at 663.
12
See United States v. Ashburn, 38 F.3d 803, 809-10 (5th Cir. 1994) (en
banc); United States v. Rosogie, 21 F.3d 632, 634 (5th Cir. 1994) (affirming the
addition of one offense level for each criminal history point above 13).
4
IV
Finding no abuse of discretion by the district court, we
AFFIRM.
5