Case: 15-11158 Document: 00513644446 Page: 1 Date Filed: 08/19/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 15-11158
Fifth Circuit
FILED
Summary Calendar August 19, 2016
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
ABEL ARTURO SEGOVIA-HERNANDEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:15-CR-142-1
Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM: *
Abel Arturo Segovia-Hernandez appeals the sentence imposed following
his conviction for illegal reentry after deportation. Segovia-Hernandez’s
advisory guideline range was 24 to 30 months of imprisonment. However,
relying on U.S.S.G. § 4A1.3, the district court imposed an upward departure
sentence of 72 months of imprisonment. Segovia-Hernandez contends that this
was an abuse of discretion. He also challenges his sentence as violating the
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-11158
Due Process Clause, but, as he concedes, his argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998).
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). In the context of a guidelines departure pursuant to
§ 4A1.3, this court evaluates both “the district court’s decision to depart
upwardly and the extent of that departure for abuse of discretion.” United
States v. Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir. 2006) (internal quotation
marks and citation omitted). There is no abuse of discretion if the district
court’s reasons for departing advance the objectives of 18 U.S.C. § 3553(a)(2)
and are justified by the facts of the case. Zuniga-Peralta, 442 F.3d at 347; see
also United States v. Zelaya-Rosales, 707 F.3d 542, 546 (5th Cir. 2013). The
parties disagree whether error was preserved in the district court. However,
we need not determine the appropriate standard of review because, under
either standard, Segovia-Hernandez’s arguments are unavailing. See United
States v. Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008).
The record reflects that the district court explicitly considered the
breadth and nature of Segovia-Hernandez’s criminal history and his
arguments in mitigation. Moreover, the district court stated for the record that
it considered intermediate adjustments, explained why the criminal history
category as calculated under the guidelines was inappropriate, and why the
sentence it ultimately chose was appropriate. The reasons cited by the district
court made appropriate reference to the § 3553(a) factors. Because the district
court’s reasons for the departure advanced the objectives of § 3553(a)(2) and
were justified by the facts of the case, the district court did not abuse its
discretion in upwardly departing pursuant to § 4A1.3(a)(1). See Zuniga-
Peralta, 442 F.3d at 347-48. Nor was the extent of the departure excessive
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under the circumstances. See, e.g., United States v. Jones, 444 F.3d 430, 433,
441-42 (5th Cir. 2006); Zuniga-Peralta, 442 F.3d at 346-48.
AFFIRMED.
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