IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 3, 2008
No. 07-40472
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ROLANDO TREVINO
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:07-CR-62-ALL
Before KING, DeMOSS, and BENAVIDES,
PER CURIAM:*
Rolando Trevino appeals the sentence imposed following his guilty-plea
conviction for possession with intent to distribute in excess of 100 kilograms of
marijuana. Trevino’s 130-month sentence included an upward departure from
criminal history category VI pursuant to U.S.S.G. § 4A1.3. Trevino argues that
the district court committed reversible error by upwardly departing from the
applicable guidelines range. Trevino did not object to the upward departure in
*
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should not be published and is not precedent except under the limited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. 07-40472
the district court. Therefore, this court’s review is for plain error. See United
States v. Olano, 507 U.S. 725, 731-37 (1993).
The district court concluded that an upward departure was warranted
because Trevino’s criminal history score underrepresented the seriousness of his
criminal history or the likelihood that he would commit other crimes and further
explained that the departure was justified by Trevino’s extensive criminal
history as of age 12, commission of offenses while under court supervision,
consistent pattern of eluding law enforcement authorities, and consistent
pattern of criminal activity. Also, Trevino had prior convictions for which
criminal history points could not be assessed, including multiple convictions as
a juvenile and convictions as an adult for misdemeanor evading arrest or
detention and two counts of failing to identify. Further, Trevino had pending
charges for unauthorized use of a motor vehicle and theft and assault by threat,
and he had an outstanding warrant for his arrest for failure to appear on the
assault charge. The district court’s oral and written reasons were sufficient to
inform the parties and aid this court. See United States v. Zuniga-Peralta, 442
F.3d 345, 348 (5th Cir.), cert. denied, 126 S. Ct. 2954 (2006). This conclusion is
fortified by the probation officer’s comments regarding the possibility of a §4A1.3
departure and the court’s explicit adoption of that reasoning at sentencing. See
id. at 348-49.
The extent of the district court’s departure was not unreasonable given the
serious nature of the instant offense, Trevino’ extensive criminal history, and the
fact that Trevino committed the instant offense during the pendency of several
state charges. See Zuniga-Peralta, 442 F.3d at 347-48; United States v. Smith,
417 F.3d 483, 492 (5th Cir. 2005). In addition, the district court’s reasons for
imposing the sentence, to promote respect for the law, to reflect the seriousness
of the offense, to deter future criminal conduct, and to protect the public, were
consistent with the requirements of 18 U.S.C. § 3553(a).
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No. 07-40472
Trevino has not shown that the district court erred, much less plainly
erred, in imposing an upward departure or that the extent of the departure was
unreasonable.
Accordingly, the judgment of the district court is AFFIRMED.
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