Case: 13-50132 Document: 00512429118 Page: 1 Date Filed: 11/04/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 4, 2013
No. 13-50132
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
FRANCISCO CHAVEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:12-CR-2409-1
Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM: *
Francisco Chavez appeals from his conviction of transporting aliens for
financial gain. He contends that his 24-month sentence of imprisonment,
which was an upward departure from his guideline sentencing range, was
substantively unreasonable. He argues that his criminal history score
adequately took into account his more recent convictions, that many of his
convictions occurred when he was younger, that many of those convictions
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-50132
reflected problems with alcohol, and that sentencing above the guideline range
was unnecessary. He also argues that a sentence within the guideline range
would have been sufficient to account for the 18 U.S.C. § 3553(a) factors.
When a proper objection is raised in the district court, this court reviews
“the substantive reasonableness of the sentence imposed under an abuse-of-
discretion standard.” Gall v. United States, 552 U.S. 38, 51 (2007). Under
U.S.S.G. § 4A1.3, a district court may depart upwardly “[i]f reliable
information indicates that the defendant’s criminal history category
substantially under-represents the seriousness of the defendant’s criminal
history or the likelihood that the defendant will commit other crimes.”
§ 4A1.3(a)(1); United States v. Mejia-Huerta, 480 F.3d 713, 723 (5th Cir. 2007).
The district court may base the departure on, among other things, prior
sentences not used in computing the criminal history category and prior
similar adult conduct that did not result in a criminal conviction.
§ 4A1.3(a)(2)(A), (E). This court reviews a district court’s decision to depart
and the extent of the departure under the abuse of discretion standard. United
States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006).
When a defendant fails to object to the substantive or procedural
reasonableness of his sentence, this court’s review is for plain error. United
States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). To show plain error, the
appellant must show a forfeited error that is clear or obvious and that affects
his substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If
the appellant makes such a showing, this court has the discretion to correct
the error but only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Id. Chavez’s contention that the sentence
was substantively unreasonable, however, should be reviewed under the plain
error standard. See Peltier, 505 F.3d at 391-92.
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No. 13-50132
Chavez’s criminal history was lengthy and serious, including more than
30 prior convictions, many of which involved drunk driving and assault. The
district court’s determination that the criminal history score did not
adequately reflect the seriousness of Chavez’s criminal history was not an
abuse of discretion. See Smith, 440 F.3d at 707; see also United States v.
Carrillo-Rodriguez, 259 F. App’x 671, 672 (5th Cir. 2010) (affirming a
departure based on number and nature or prior convictions); United States v.
Lee, 358 F.3d 315, 328-29 (5th Cir. 2004) (affirming a departure based on
numerous short sentences that had little deterrent effect).
The district court’s explanation for the sentence focused on Chavez’s
lengthy criminal history, which suggested Chavez’s general lack of respect for
the law and the need to protect the public from Chavez. The district court thus
addressed factors set out at § 3553(a). To the extent Chavez argues that the
district court should have given more weight to other factors, this court will
not reweigh those factors. See Gall, 552 U.S. at 51.
Chavez has failed to show error, plain or otherwise.
AFFIRMED.
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