United States v. De La Rosa

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 7, 2007

Charles R. Fulbruge III
Clerk
No. 06-10434
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GUSTAVO DE LA ROSA,

Defendant-Appellant.

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Appeal from the United States District Court
for the Northern District of Texas
(4:05-CR-186-ALL)
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Before SMITH, WIENER, and OWEN, Circuit Judges

PER CURIAM:*

Defendant-Appellant Gustavo De La Rosa appeals his guilty-plea

conviction and sentence for illegal reentry following deportation

subsequent to conviction for aggravated felony. See 8 U.S.C. §

1326. De La Rosa challenges the district court’s upward departure

in his sentence on the basis that his criminal history category of

V substantially under-represented the seriousness of his prior

criminal conduct and the likelihood of recidivism. See U.S.S.G.

§ 4A1.3(a). He argues that the district court erred when it

assigned a criminal history category of VI and increased his

*
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this opinion should not be published and is not precedent except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.
offense level by three levels. He also argues that the “felony”

and “aggravated felony” provisions of § 1326(a) and (b) are

unconstitutional.

De La Rosa’s constitutional challenge is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).

Although De La Rosa contends that Almendarez-Torres was incorrectly

decided and that a majority of the Supreme Court would overrule

Almendarez-Torres in light of Apprendi v. New Jersey, 530 U.S. 466

(2000), we have repeatedly rejected such arguments on the basis

that Almendarez-Torres remains binding. See United States v.

Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, 126 S. Ct.

298 (2005).

We review the decision of the sentencing court to depart, and

the extent of the departure, for abuse of discretion, ultimately

determining whether the sentence is unreasonable under 18 U.S.C.

§ 3553(a). United States v. Desselle, 450 F.3d 179, 182 (5th Cir.

2006), cert. denied, 2007 WL 135707, 75 U.S.L.W. 3196 (2007);

United States v. Simkanin, 420 F.3d 397, 415-16 (5th Cir. 2005),

cert. denied, 126 S. Ct. 1911 (2006).

As determined by the district court, the record indicates that

De La Rosa has a general disrespect of the law and that prior

punishment for criminal acts has not acted as a deterrent. The

district court thus did not abuse its discretion when it used

recidivism as a basis for the departure. See U.S.S.G.

§ 4A1.3(a)(1). Additionally, the extent of the departure was not

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“unreasonable,” given that De La Rosa had illegally entered this

country undetected on three prior occasions and had committed at

least one crime in this country on each occasion, and that he was

unresponsive to the prison sentences he received for prior crimes.

See United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006);

§ 4A1.3(a)(2)(E).

AFFIRMED.

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