United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 25, 2004
_________________________ Charles R. Fulbruge III
Clerk
No. 04-10068
SUMMARY CALENDAR
_________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RIGOBERTO GRIJALVA-LOPEZ, also know as Marcos
Ventura-Lopez, also known as Jesus Guardado-Sanchez, also
known as Mario Alberto, also known as Carlos Alberto, also
known as Jesus Gomez-Sanchez, also known as Marcus
Ventura-Lopez,
Defendant - Appellant.
_________________________________________________________________
Appeal from the United States District Court for the
Northern District of Texas
(4:03-CR-264-ALL-A)
_________________________________________________________________
Before REYNALDO G. GARZA, DAVIS, and BARKSDALE, Circuit Judges.
REYNALDO G. GARZA, Circuit Judge:1
In this appeal, we review the sentence of Defendant -
Appellant, Rigoberto Grijalva-Lopez, for illegal re-entry
following deportation in violation of 8 U.S.C. §§ 1326(a), (b)(2)
and 6 U.S.C. §§ 202(3), (4), and 557. For the following reasons,
we uphold the sentence.
1
Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R.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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Grijalva-Lopez argues that the district court erred in
departing upward from the Sentencing Guidelines range. Grijalva-
Lopez had previously been charged in state court with residential
burglary and aggravated kidnaping, but he eventually pleaded
guilty to the lesser charges of trespassing and false
imprisonment. He argues that the district court’s consideration
of the charged offenses instead of the convicted offenses without
an independent investigation of the facts was in opposition to
the requirements of U.S.S.G. § 4A1.3(a)(3) which allows the
district court to determine whether a defendant’s criminal
history category substantially underrepresents his criminal
history or the likelihood that he will commit other crimes.
We review the district court’s decision to depart under 18
U.S.C. § 3742(e)(3)(B) de novo. See United States v. Phipps, 368
F.3d 505, 513 (5th Cir. 2004); United States v. Lee, 358 F.3d
315, 326-27 (5th Cir. 2004).
The Sentencing Guidelines do not prohibit a district court
from considering information other than the factors listed in §
4A1.3(a)(2) in determining whether a defendant’s criminal history
category substantially underrepresents his criminal history or
the likelihood that he will commit other crimes. U.S.S.G. §§
1B1.1, comment (n.2), 4A1.3(a)(2). In this case, the district
court did not consider Grijalva-Lopez’s prior arrest record
itself in deciding to depart upwards and instead relied on
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information in the Presentence Report. Further, Grijalva-Lopez
failed to demonstrate that information found in the Presentence
Report and relied upon by the district court was untrue. See
United States v. Fitzgerald, 89 F.3d 218, 223 (5th Cir. 1996).
Thus, the district court did not err in finding that Grijalva-
Lopez committed aggravated kidnaping and residential burglary and
departing upwards from the Sentencing Guidelines range.
Grijalva-Lopez also presents several arguments for the first
time on appeal: (1) that none of the information considered by
the district court falls within the list of enumerated factors in
§ 4A1.3(a)(2)(A)-(E) and therefore should not have been
considered; (2) that his remote convictions are not serious or
similar to the instant offense within the meaning of § 4A1.2; (3)
that even if this court determined that some of the offenses were
serious or similar offenses, the existence of one or two such
convictions did not justify an upward departure; (4) that the
misdemeanor offenses cited by the district court did not evidence
a propensity for violence; and (5) that the extent of the upward
departure was unreasonable and the district court did not
consider intermediate sentencing ranges.
After a review of these issues for plain error, we find that
Grijalva-Lopez has failed to show that the district court
committed plain error. See United States v. Vasquez, 216 F.3d
456, 459 (5th Cir. 2000).
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Finally, we defer to the decision of this court in United
States v. Pineiro, No. 03-30437, 2004 WL 1543170 (5th Cir. July
12. 2004) in finding that Grijalva-Lopez’s sentence did not
violate the United States Constitution.
For the foregoing reasons, the sentence is AFFIRMED.
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