United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 2, 2007
Charles R. Fulbruge III
Clerk
No. 06-41030
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GRACIELA GONZALEZ-ZUNIGA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:05-CR-735-1
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Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
Graciela Gonzalez-Zuniga (Gonzalez) pleaded guilty to
unlawful transportation of an alien within the United States, in
violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and (B)(ii). Based on
an offense level of 10 and a criminal history category of I,
Gonzalez’s guideline range of imprisonment was 6 to 12 months.
The district court determined that the Guidelines did not
adequately reflect the nature of Gonzalez’s crime or her prior
criminal activity. Using an offense level of 10 and a criminal
history category of VI, the district court sentenced Gonzalez to
*
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this opinion should not be published and is not precedent except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.
No. 06-41030
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30 months of imprisonment. At the sentencing hearing, the
district court stated that it was imposing an upward departure.
In its statement of reasons, however, the district court
characterized the sentence as a non-guideline sentence.
Gonzalez contends that the sentence is unreasonable. She
argues that the district court failed to follow the appropriate
methodology for upwardly departing. She also argues that the
district court erred by failing to properly consider the
objective of avoiding unwarranted sentencing disparity.
Gonzalez did not make these arguments in the district court.
Her arguments may therefore be subject to plain error review, see
United States v. Castillo, 430 F.3d 230, 241-42 (5th Cir. 2005),
rather than the reasonableness standard that governs sentences
post-United States v. Booker, 543 U.S. 220 (2005). See United
States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006). We need not
decide which standard applies, however, because we conclude that
Gonzalez’s sentence was proper under either standard.
The district court relied upon 18 U.S.C. § 3553(a)(1),
(a)(2)(A), and (a)(2)(B) at the sentencing hearing and in the
statement of reasons. At the sentencing hearing, where the
district court stated that it was imposing an upward departure,
the district court determined that the Guidelines did not
adequately reflect the § 3553(a) sentencing factors. The
district court analyzed the facts, the nature and circumstances
of the offense, Gonzalez’s history and characteristics, and an
No. 06-41030
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inability of the system to deter Gonzalez’s criminal conduct.
The district court stated that it was considering the other
criminal categories and provided explicit reasons for using
category VI rather than category I. Although in a “very narrow
class of cases” more detail may be required, United States v.
Lambert, 984 F.2d 658, 663 (5th Cir. 1993) (en banc), this court
has affirmed significant departures in other cases where explicit
consideration was not given to each criminal history category.
See United States v. Ashburn, 38 F.3d 803, 809 (5th Cir. 1994)
(en banc); United States v. McKenzie, 991 F.2d 203, 204-06 (5th
Cir. 1993). Because the basis for the district court’s ruling is
thoroughly stated in the record, Gonzalez’s case does not fall
into the narrow range of cases where explicit detail is required
regarding the district court’s rejection of the intervening
criminal history categories.
Gonzalez also argues in her attack on the upward departure
that the district court failed properly to consider the objective
of avoiding unwarranted sentencing disparity. As Gonzalez fails
to explain why her sentence is disparate from others with similar
records who have been found guilty of similar conduct, see
§ 3553(a)(6), she has failed to establish that the district court
erred in its consideration of this sentencing factor.
The district court’s reasons for departing advance the
objectives set forth in § 3553(a) and are justified by the facts
of this case. The departure therefore resulted in a reasonable
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sentence. United States v. Zuniga-Peralta, 442 F.3d 345, 347
(5th Cir. 2006), cert. denied, 126 S. Ct. 2954 (2006).
To the extent Gonzalez’s sentence is considered a non-
guideline sentence as indicated by the statement of reasons, the
district court adequately complied with the procedure set forth
in United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006).
Moreover, the district court’s rationale was explicit enough for
this court to determine that the § 3553(a) factors support the
sentence and that the district court adequately balanced the
§ 3553(a) factors. See id. at 707-08. Because “the court’s
findings in support of the upward variance sufficiently
demonstrate that the substance of the sentence is reasonable
under § 3553(a),” id. at 710, the district court did not err in
the imposition of a non-guideline sentence.
Because Gonzalez’s sentence was reasonable either as a
Guideline sentence with an upward departure or as a non-Guideline
sentence, the district court’s judgment is AFFIRMED.