United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 6, 2006
_______________________ Charles R. Fulbruge III
Clerk
No. 04-50575
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DARIO ZUNIGA-PERALTA,
Defendant-Appellant.
On Appeal from the United States District Court
for the Western District of Texas
Before JONES, Chief Judge, and DEMOSS and CLEMENT, Circuit
Judges.
EDITH H. JONES, Chief Judge:
Dario Zuniga-Peralta pled guilty to illegal reentry into
the United States after deportation and was sentenced, after an
upward departure, to sixty months in prison. Zuniga-Peralta now
appeals his sentence, arguing that the extent of the district
court’s upward departure under the Sentencing Guidelines was
unreasonable, and the court’s written statement of reasons failed
to provide specific reasons explaining why the applicable criminal
history category substantially under-represented the seriousness of
his criminal history.1 Finding no reversible error, we AFFIRM.
I. BACKGROUND
Dario Zuniga-Peralta, a citizen of Guatemala, has been
previously deported from the United States at least four times,
commencing in 1988. Most recently, Zuniga-Peralta was removed in
1996 after a conviction for a drug-trafficking offense. Prior to
his removal, he received a written warning that it is a felony
offense to return to the United States without obtaining prior
consent from the Attorney General. Nevertheless, Zuniga-Peralta
reentered illegally, as he admitted, on or about October 2, 2002,
near Laredo, Texas.
In determining Zuniga-Peralta’s sentence, the district
court found that Zuniga-Peralta had a total offense level of 17.
The calculation included a 12-level upward adjustment under
guideline §2L1.2(b)(1) for the drug conviction, and a three-level
downward adjustment under guideline §3E1.1 for acceptance of
responsibility. Based on a recommended criminal history category
of II, the guideline sentence range indicated twenty-seven to
thirty-three months imprisonment. Zuniga-Peralta requested a
1
The briefing was completed in this case before the Supreme Court
issued its decision in Booker. No Booker/Fanfan issues have been raised apart
from Appellant’s admittedly-foreclosed request that we consider Almendarez-
Torres, 523 U.S. 224, 118 S. Ct. 1219 (1998), overruled. See United States v.
Mancia-Perez, 331 F.3d 464, 470 (5th Cir. 2003) (holding that this court must
follow the precedent set in Almendarez v. Torres “unless and until the Supreme
Court itself determines to overrule it”) (internal quotation marks and citations
omitted).
2
sentence within the guideline range, but the district court
departed upward pursuant to § 4A1.3 from a criminal history
category II to category VI and sentenced him to sixty months. In
so doing, the district court expressly pointed to Zuniga-Peralta’s
prior uncounted offenses, his four deportations, and his use of
eleven aliases, noting that Zuniga-Peralta’s three criminal history
points “considerably” understated his criminal history.
II. STANDARD OF REVIEW
We review the district court’s interpretation and
application of the Guidelines de novo and its factual findings for
clear error. United States v. Villanueva, 408 F.3d 193, 202 (5th
Cir. 2005). Additionally, we review upward departures for
reasonableness, which necessitates that we review “the district
court’s decision to depart upwardly and the extent of that
departure for abuse of discretion.” United States v. Saldana, 427
F.3d 298, 308 (5th Cir. 2005).
III. DISCUSSION
Zuniga-Peralta argues that 1) the district court’s upward
departure was unreasonable; and 2) the court’s written statement of
reasons did not explain sufficiently, as required by 18 U.S.C.
§ 3553(c), why the applicable criminal history category
substantially underrepresented the seriousness of his criminal
history.
A. Extent of Upward Departure
3
An upward departure by a district court is not an abuse
of discretion if the court’s reasons for departing 1) “advance the
objectives set forth in 18 U.S.C. § 3553(a)(2)” and 2) “are
justified by the facts of the case.” See Saldana, 427 F.3d at 310
(citing 18 U.S.C. § 3742(j)(1)). Further,
Although Booker excised § 3553(b), the directive to
consider the heartland of an offense and enumerate
particular reasons for a departure from the sentencing
range lives on in U.S. Sentencing Guideline § 5K2.0 and,
implicitly, in § 3553(a)’s requirement that the court
consider the guidelines and the appropriate sentencing
range and § 3553(c)’s requirement that the court
enumerate reasons for sentencing without the range.
Id. at 310 n.46.
In the instant case, the district court expressly adopted
the factual findings and guideline application recommended by the
presentence report (“PSR”). The PSR noted Zuniga-Peralta’s
extensive criminal history and stated that:
The Court could depart from the guideline range under
U.S.S.G. § 4A1.3, should the Court find that the
defendant’s criminal history category does not adequately
reflect the seriousness of the defendant’s past criminal
history or the likelihood that the defendant will commit
other crimes.
PSR at ¶ 77. At sentencing, the court commented on Zuniga-
Peralta’s lengthy criminal history, multiple deportations, and use
of eleven aliases. The court concluded that Zuniga-Peralta’s three
criminal history points considerably understated his criminal
activity, and that it was departing based on U.S.S.G. § 4A1.3. The
court’s written Statement of Reasons relates that it departed from
the Guideline range pursuant to § 4A1.3. The record thus makes
4
abundantly clear, through the court’s adoption of the PSR, its
statements at sentencing, and its Statement of Reasons, the reasons
for an upward departure.
We hold that the district court’s reasons advance the
objectives set forth in 18 U.S.C. § 3553(a)(2) and are justified by
the facts of the case. The district court correctly concluded that
appellant is a determined recidivist who poses an extra danger
through his frequent use of false names. That the ultimate
sentence of sixty months is nearly double the initial sentence
range does not render this departure abusive considering all of the
circumstances. Consequently, the district court did not abuse its
discretion in the decision to depart or extent of departure from
the Guidelines.2
B. Written Statement
Zuniga-Peralta also contends that the district court’s
written statement of reasons failed to provide the specificity
required by 18 U.S.C. § 3553(c) in explaining why the applicable
criminal history category was substantially underrepresentative.
See United States v. Mares, 402 F.3d 511, 519 n.8 (5th Cir. 2005).
2
Zuniga-Peralta also contends that the district court’s departure was
unreasonable because the court failed to state reasons why intervening levels
were inadequate. However, it is well settled that a district court does not need
“to go through a ritualistic exercise in which it mechanically discusses each
criminal history category it rejects en route to the category that it selects,”
and that the court’s reasons for rejecting intermediate categories will be quite
apparent in its stated reasons for departure. United States v. Ashburn, 38 F.3d
803, 809 (5th Cir. 1994) (en banc) (citing United States v. Lambert, 984 F.2d
658, 663 (5th Cir. 1993) (en banc)).
5
A factually similar Eighth Circuit case, United States v.
Paz, 411 F.3d 906 (8th Cir. 2005), is instructive on the adequacy
of a district court’s written statement for a § 4A1.3 departure.
In analyzing the issue, the court wrote, “When a district court
departs outside the recommended range of the guidelines, it must
state in open court and in the written order of judgment and
commitment the reasons for that particular sentence.” Id. at
910-11 (citing 18 U.S.C. § 3553(c)(2)). The court continued:
The purpose of § 3553(c)(2) is to inform the parties of
the reasons for a particular sentence outside of the
guidelines range, to aid the reviewing court in
determining the appropriateness of any guidelines
departure or § 3553(a) variance, and to assist the
Sentencing Commission in collecting sentencing data and
in maintaining a comprehensive database on all federal
sentences.
Id. at 911 (citations omitted).
In Paz, the court reasoned that the purpose of
§ 3553(c)(2) was fulfilled because the district court stated in the
written order of judgment and commitment that it departed from the
recommended guideline range because the defendant’s criminal
history category did not adequately reflect the seriousness of his
past criminal conduct, and the district court “stated with great
specificity in open court the reasons for its decision to depart
upward.” Id. The court concluded that “[w]hile the district court
might have stated its reasons for the upward departure with a
higher degree of specificity in writing,” the court’s written
6
statement nevertheless was sufficient to inform the parties, aid
the reviewing court, and assist the Sentencing Commission. Id.
In the instant case, the purpose of § 3553(c)(2) was
fulfilled in exactly the same way as in Paz. Therefore, as in Paz,
we conclude that “while the district court might have stated its
reasons for the upward departure with a higher degree of
specificity in writing,” the district court’s written statement
nevertheless was sufficient to inform the parties, aid the
reviewing court, and assist the Sentencing Commission. Id. This
conclusion is fortified by the PSR’s comment suggesting the
possibility of a § 4A1.3 departure and the court’s clear and
repeated explanation at sentencing.3
IV. CONCLUSION
For the reasons discussed above, the district court’s
decision is AFFIRMED.
3
Even if we were to conclude that the court did not sufficiently
comply with § 3553(c) and was required to restate its reasons for departure in
the written judgment and commitment order, the remedy here would be not a
vacating of the sentence, but a remand for correction of the written judgment.
The clarity and correctness of the court’s reasoning supporting departure leave
no room to require resentencing.
7
DeMOSS, Circuit Judge, dissenting:
With all due respect, I dissent because the case should be
remanded to the district court for supplementation of the written
order with specific reasons for the decision to upwardly depart.
The PROTECT Act provides in pertinent part:
(c) Statement of reasons for imposing a sentence.--The
court, at the time of sentencing, shall state in open
court the reasons for its imposition of the particular
sentence, and, if the sentence . . .
(2) is not of the kind, or is outside the range,
described in subsection (a)(4), the specific reason
for the imposition of a sentence different from
that described, which reasons must also be stated
with specificity in the written order of judgement
and commitment . . . .
18 U.S.C. § 3553(c)(2) (emphasis added).
Similarly, the relevant portions of the Guidelines state:
(c) WRITTEN SPECIFICATION OF BASIS FOR DEPARTURE.--In
departing from the otherwise applicable criminal history
category . . . the court shall specify in writing the
following:
(1) In the case of an upward departure, the
specific reasons why the applicable criminal
history category substantially under-represents the
seriousness of the defendant’s criminal history or
the likelihood that the defendant will commit other
crimes.
U.S.S.G. § 4A1.3(c)(1) (emphasis added).
The requirement that district courts give specific, written reasons
survives Booker. See Saldana, 427 F.3d at 310 n.46.
8
In support of its drastic upward departure (from between
twenty-seven and thirty-three months to sixty months) the district
court stated: “Pursuant to 4A1.3. The defendant’s Criminal History
Category does not adequately reflect the seriousness of the
defendant’s conduct.” Because the second sentence merely re-states
the standard for a departure under § 4A1.3, the written statement
would have been equally useful had it simply stated “Pursuant to
4A1.3.” and nothing else. “Pursuant to 4A1.3” is a far cry from
“specific” reasons, see U.S.S.G. § 4A1.3(c)(1), reasons “stated
with specificity,” see 18 U.S.C. § 3553(c)(2), or “fact specific”
reasons, see, e.g., Mares, 402 F.3d at 519.
In arriving at its conclusion that the district court’s
written reason satisfied § 3553(c)(2), the majority cites Paz, 411
F.3d 906. However, I find Paz unhelpful here for several reasons.
First, Paz is unconvincing because it contains no reasoning to
support its conclusion. Therefore, it fails to address the proper
statutory interpretation of “reasons” in § 3553(c)(2). Second, Paz
does not resolve the precise issue in this case because the
defendant there argued that giving inadequate written reasons
required a vacatur of the sentence. See Paz, 411 F.3d at 910-11.
In contrast, Zuniga-Peralta does not ask us to vacate, but only to
remand for supplementation of the written order. Finally, Paz is
not binding authority in this Circuit.
9
The requirement that district courts write down factual
reasons for an upward departure that greatly increases a
defendant’s sentence is not overly burdensome. Moreover, allowing
district courts to disregard the requirement puts a burden on this
Court by requiring us to comb the transcripts for every conceivable
reason for the district court’s decision. Finally, any burden that
district courts may incur when complying with § 3553(c)(2) is for
Congress to consider, not this Court. As written, § 3553(c)(2)
requires that district courts give in their written order factual
reasons for an upward departure. In the “brave new world” of
sentencing post-Booker, I would hope that sentencing judges would
make a habit of giving written and specific factual reasons for any
sentence above or below a properly calculated Guideline range.
10