IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 11, 2008
No. 07-40749
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
CHRISTINO ORTEGA
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:07-CR-166-2
Before REAVLEY, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Christino Ortega appeals the sentence imposed following his guilty-plea
conviction for possession with the intent to distribute 21 kilograms of marijuana,
in violation of 21 U.S.C. § 841(a). He contends that the 46-month prison term
and life term of supervised release, which resulted from an upward departure
pursuant to U.S.S.G. § 4A1.3, is unreasonable. Ortega urges that he should
have been sentenced to 27 months, per the Government’s request, and that the
district court erred in concluding that his criminal history score
*
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should not be published and is not precedent except under the limited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. 07-40749
underrepresented his criminal past. Ortega’s argument is that the upward
departure was not justified; he does not specifically contest the extent of the
upward departure and has thus abandoned any such argument. See Yohey v.
Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
This court reviews sentences for reasonableness. The reasonableness
review of an upward departure employs an abuse-of-discretion standard. See
United States v. Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir.), cert. denied, 126
S. Ct. 2954 (2006); see also Gall v. United States, 128 S. Ct. 586, 591 (2007). A
sentencing court does not abuse its discretion in deciding to upwardly depart
when its reasons for doing so advance the objectives set forth in 18 U.S.C.
§ 3553(a)(2) and are justified by the facts of the case. Zuniga-Peralta, 442 F.3d
at 347.
The district court’s reasons for upwardly departing advance the objectives
set forth in § 3553(a)(2) and are justified by the fact that Ortega’s three prior
marijuana-trafficking convictions, in combination with the instant conviction,
reveal an almost thirty-year career of marijuana trafficking. Two of the prior
convictions were unscored due to age, and Ortega received lenient sentences in
both of those cases, which facts led to an underrepresentation of his true
criminal history. The decision to upwardly depart was therefore not an abuse
of discretion. See Zuniga-Peralta, 442 F.3d at 345.
AFFIRMED.
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