United States v. Jose Cervantes

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-3768
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United States of America, *
*
Appellee, *
*
v. * Appeal from the United States
* District Court for the
Jose Jesus Valdovinos Cervantes, * Northern District of Iowa.
*
Appellant. * [UNPUBLISHED]
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Submitted: June 23, 2004
Filed: June 28, 2004
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Before BYE, McMILLIAN, and RILEY, Circuit Judges.
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PER CURIAM.

Jose Jesus Valdovinos Cervantes (Cervantes) pled guilty to illegally reentering
the United States after deportation, in violation of 8 U.S.C. § 1326(a). The district
court1 sentenced him to 27 months imprisonment and 2 years supervised release. On
appeal, Cervantes argues the district court clearly erred when calculating his criminal
history by finding that his previous offenses for obstructing prosecution and false
representation of United States citizenship were unrelated because, although they

1
The Honorable Mark W. Bennett, Chief Judge, United States District Court
for the Northern District of Iowa.
have different elements, occurred in different venues, and affected different victims,
both offenses were part of a long-running scheme to conceal his identity. Cervantes
also argues that the district court’s alternative upward departure was not justified, and
that the court failed to make the required written findings in support of the departure.

We need not consider the district court’s “alternative” departure because we
find no clear error in the court’s conclusion that Cervantes’s previous sentences were
unrelated and not the result of a single common scheme or plan. See U.S.S.G.
§ 4A1.2, cmt. n.3 (previous “sentences are considered related if they resulted from
offenses that (A) occurred on the same occasion, (B) were part of a single common
scheme or plan, or (C) were consolidated for trial or sentencing”); United States v.
Lowe, 930 F.2d 645, 646-47 (8th Cir. 1991) (standard of review). Neither the
similarity of the previous offenses nor their temporal proximity or Cervantes’s
common motive is sufficient to establish that his sentences resulted from a single
common scheme or plan. See id. at 647 (“[s]imilar crimes are not necessarily related
crimes”; motive or modus operandi may be factors in making single-common-
scheme-or-plan determination, but they are not conclusive in every case); United
States v. Mau, 958 F.2d 234, 236 (8th Cir. 1992) (rejecting argument that previous
offenses were part of single common scheme simply because they both involved
distribution of controlled substances and occurred within one-year period). Further,
Cervantes pled guilty to the offenses before different tribunals, governing different
jurisdictions, and at different times. See United States v. Manuel, 944 F.2d 414, 416
(8th Cir. 1991) (defendant’s previous forgery convictions were not part of common
scheme and were factually unrelated, in part because defendant pled guilty before
different tribunals, governing different jurisdictions, at different times).

Accordingly, we affirm.
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