IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 21, 2009
No. 09-20259
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
FRANCISCO SAUCEDA, also known as Francisco Saucedo,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:08-CR-158-1
Before KING, BARKSDALE, and GARZA, Circuit Judges.
PER CURIAM:*
Francisco Sauceda pleaded guilty to a single count of illegal reentry after
deportation. See 8 U.S.C. § 1326. He appeals his sentence of 57 months’
imprisonment, claiming: the district court erred by refusing to grant him an
acceptance-of-responsibility reduction under Sentencing Guideline § 3E1.1(a);
and, it abused its discretion by upwardly departing two criminal history
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-20259
categories and by imposing the highest sentence within the resulting Guidelines
range.
Although post-Booker, the Guidelines are advisory only, and an ultimate
sentence is reviewed for reasonableness under an abuse-of-discretion standard,
the district court must still properly calculate the guideline-sentencing range for
use in deciding on the sentence to impose. Gall v. United States, 552 U.S. 38, 51
(2007). In that respect, its application of the guidelines is reviewed de novo; its
factual findings, only for clear error. E.g., United States v. Cisneros-Gutierrez,
517 F.3d 751, 764 (5th Cir. 2008); United States v. Villegas, 404 F.3d 355, 359
(5th Cir. 2005).
Regarding the district court’s refusing to grant an acceptance-of-
responsibility reduction, its decision is reviewed “with even greater deference”
than clear-error review. United States v. Buchanan, 485 F.3d 274, 287 (5th Cir.
2007). A denial of a reduction under § 3E.1.1 will not be reversed unless the
decision is “without foundation”. United States v. Juarez-Duarte, 513 F.3d 204,
211 (5th Cir.), cert. denied, 128 S. Ct. 2452 (2008).
Sauceda quickly stated his desire to plead guilty and admitted the facts
underlying his offense. His other statements and actions before the district
court, however, failed to demonstrate the required “sincere contrition”. United
States v. Beard, 913 F.2d 193, 199 (5th Cir. 1990); see also United States v. Le,
512 F.3d 128, 134 (5th Cir. 2007) (holding guidelines enhancement could be
affirmed on any basis supported by the record), cert. denied, 129 S. Ct. 55 (2008).
Accordingly, Sauceda has not shown the district court’s decision was without
foundation.
The district court’s departing upwardly and sentencing Sauceda at the top
of the resulting Guidelines range was pursuant to U.S.S.G. § 4A1.3, p.s.
(allowing an upward departure where criminal history category inadequately
represents “the seriousness of the defendant's criminal history”) and 18 U.S.C.
§ 3553(a) (providing factors to be considered in imposing a sentence). Sauceda
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No. 09-20259
maintains the departure was not reasonable and that the district court abused
its discretion. Our court reviews upward departures for reasonableness, which
requires that we review “the district court’s decision to depart upwardly and the
extent of that departure for abuse of discretion”. United States v. Zuniga-
Peralta, 442 F.3d 345, 347 (5th Cir. 2006) (internal quotation marks and citation
omitted). A within-Guidelines sentence, however, is entitled to a rebuttable
presumption of reasonableness. United States v. Newson, 515 F.3d 374, 379 (5th
Cir. 2008).
Sauceda contends the district court erred by considering his “prior arrest
record”. Although consideration of prior arrests, without more, is specifically
prohibited by the Guidelines as a ground for an upward departure, U.S.S.G.
§ 4A1.3(a)(3), the record shows the district court considered Sauceda’s extensive
record of prior convictions, not his other arrests. Sauceda has not shown an
abuse of discretion in the district court’s decision to depart upwardly or the
extent of that departure, nor has he overcome the presumption of reasonableness
afforded his resulting within-Guidelines sentence.
AFFIRMED.
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