United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 12, 2004
Charles R. Fulbruge III
Clerk
No. 03-10709
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE CARBAJAL-MARTINEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:03-CR-00035-ALL
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Before SMITH, DUHÉ, and WIENER, Circuit Judges.
PER CURIAM:1
Jose Carbajal-Martinez appeals his 180-month sentence
following his guilty-plea conviction for illegal reentry into the
United States following a deportation subsequent to a conviction
for an aggravated felony, in violation of 8 U.S.C. § 1326(a),
(b)(2). Carbajal contends that the district court erred in
departing upward from a guideline sentencing range of 77 to 96
months.
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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that this opinion should not be published and is not precedent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.
Carbajal argues that the district court made several erroneous
factual findings. After reviewing the record, we conclude that the
district court’s factual findings regarding the nature and extent
of Carbajal’s criminal history were not clearly erroneous. See
United States v. Harris, 293 F.3d 863, 871 (5th Cir.), cert.
denied, 537 U.S. 950 (2002).
Carbajal also argues that the district court’s reasons
for departure were not supported by the facts of the case.
The district court correctly found that Carbajal’s criminal history
category significantly under-represented the seriousness of his
criminal history. Additionally, his criminal history category
failed to adequately reflect Carbajal’s likelihood for recidivism.
Thus, whether the standard of review is abuse of discretion or de
novo, the district court did not err in departing upward under
U.S.S.G. § 4A1.3, p.s. See U.S.S.G. § 4A1.3, p.s.
The district court’s reasons for departure, which included
deterrence and the protection of the public, were acceptable. See
United States v. Ashburn, 38 F.3d 803, 807 (5th Cir. 1994) (en
banc). The extent of the departure was reasonable and, at
sentencing, the district court adequately articulated its reasons
for the extent of the upward departure. See United States v.
Daughenbaugh, 49 F.3d 171, 175 (5th Cir. 1995); United States v.
Lambert, 984 F.2d 658, 662-63 (5th Cir. 1993) (en banc).
Carbajal argues that the district court did not give
sufficiently specific written reasons for the extent of its upward
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departure. This argument lacks merit. In the written order
of judgment, the district court adopted, by reference, as its
reasons the factual findings and legal conclusions found in
the presentence report and those made at sentencing. Thus, the
district court did give specific reasons for the extent of the
departure. See 18 U.S.C. § 3553(c).
AFFIRMED.
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