USA v. Fidencio Maldonado-Chimal

Filing 511139541

USA v. Fidencio Maldonado-Chimal

Doc. 511139541

Case: 09-10865

Document: 00511139541

Page: 1

Date Filed: 06/11/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-10865 S u m m a r y Calendar June 11, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e , v. F ID E N C I O MALDONADO-CHIMAL, D e fe n d a n t -A p p e lla n t .

A p p e a l from the United States District Court fo r the Northern District of Texas U S D C No. 4:09-CR-46-1

B e fo r e JOLLY, WIENER, and ELROD, Circuit Judges. PER CURIAM:* F id e n c io Maldonado-Chimal appeals the sentence he received for illegal r e e n tr y into the United States after deportation, which departed upward from t h e 21-to-27 month guidelines range to 60 months of imprisonment. MaldonadoC h im a l contends that the court erred by failing to evaluate why it rejected each in t e r m e d ia t e offense level as required by United States Sentencing Guidelines § 4A1.3, and also by using the wrong legal standard to determine the a p p r o p r ia te sentence.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
*

Dockets.Justia.com

Case: 09-10865

Document: 00511139541 Page: 2 No. 09-10865

Date Filed: 06/11/2010

W e first address Maldonado-Chimal's argument that the district court e r r e d by failing to consider each intermediate step as it moved up the offense le v e ls within Category VI as required by § 4A1.3. Maldonado-Chimal objected t o the upward departure, but he did not specifically object that the district court fa ile d to follow the incremental process required by § 4A1.3. Therefore, review is limited to plain error. See Puckett v. United States, 129 S. Ct. 1423, 1429 (2 0 0 9 ). To show plain error, the defendant must show a forfeited error that is c le a r or obvious and that affects his substantial rights. See id. If the defendant m a k e s such a showing, this court has the discretion to correct the error but only if it "seriously affect[s] the fairness, integrity or public reputation of judicial p r o c e e d in g s ." Id. (citation and internal quotation marks omitted). It is well established that when a district court departs from the guideline r a n g e in sentencing a defendant, it must "evaluate each successive criminal h is t o r y category above or below the guideline range for a defendant as it d e t e r m in e s the proper extent of departure." United States v. Lambert, 984 F.2d 6 5 8 , 662 (5th Cir. 1993) (en banc). However, this requirement does not mandate t h a t a court "go through a ritualistic exercise in which it mechanically discusses e a c h criminal history category that it rejects en route to the category it selects." United States v. Zuniga-Peralta, 442 F.3d 345, 348 n. 2 (5th Cir. 2006). Rather, "the district court's reasons for rejecting intermediate categories [ordinarily] will b e clearly implicit, if not explicit in the court's explanation for its departure from t h e category calculated under the guidelines and its explanation for the category it has chosen as appropriate." Lambert, 948 F.2d at 663. We acknowledge that the district court here failed to specify the criminal h is t o r y category it applied. The court explained that Maldonado-Chimal's

g u id e lin e imprisonment range was 21-to-27 months (criminal history category V , total offense level 10), and that such a sentence was insufficient to adequately

2

Case: 09-10865

Document: 00511139541 Page: 3 No. 09-10865

Date Filed: 06/11/2010

a d d r e s s his criminal history. The court then discussed the necessity of an u p w a r d departure without any reference to criminal history level VI. We cannot say on this record that any failure the of the district court to s p e c i f i c a lly articulate why he rejected intermediate categories in favor of a h ig h e r sentence constituted plain error. See Puckett, 129 S. Ct. at 1429. The r e c o r d reflects that the district court adopted the Presentence Report and found t h a t the departure was necessary because Maldonado-Chimal's criminal history c a t e g o r y under-represented the seriousness of his criminal history and the lik e lih o o d that he would commit other crimes. It also found that the departure w a s necessary to address the 18 U.S.C. § 3553(a) factors, including his history a n d characteristics, his risk of recidivism, and the need for deterrence and to p r o m o t e respect for the law. These determinations are similar to those which h a v e sufficed in the past to show that the district court "throughly considered t h e appropriate guidelines in arriving at its ultimate sentence," as the court's " e x p la n a t io n for its sentence also explains why it rejected a lesser departure." Lambert, 984 F.2d at 663-64 (finding that court considered the appropriate g u id e lin e s where the district court "specifically concluded that the guidelines did n o t reflect the seriousness of Lambert's criminal history taken as a whole," and t h e record clearly demonstrated that raising the criminal history category by a s in g le level would have increased his sentence by only three months--an in c r e a s e which "would have been inadequate."). Accordingly, we are unable to c o n c lu d e that the court committed plain error. Maldonado-Chimal also argues that the district court applied the wrong le g a l standard when it determined his sentence. Specifically, he alleges that the d is t r ic t court erroneously adopted the reasonableness standard appropriate for a p p e lla te review rather than imposing a sentence that was sufficient but not g r e a te r than necessary to meet the objectives of § 3553(a). At sentencing, M a ld o n a d o -C h im a l objected that the sentence was unreasonable, but he did not

3

Case: 09-10865

Document: 00511139541 Page: 4 No. 09-10865

Date Filed: 06/11/2010

a r g u e that the court had used the wrong standard in determining his sentence. Therefore, review is limited to plain error. See Puckett, 129 S. Ct. at 1429. Maldonado-Chimal bases his allegation of error on the district court's m e n tio n that the sentence was "reasonable," but the record conclusively shows t h a t the district court did not base his sentence on the appellate standard of r e a s o n a b le n e s s . During the sentencing, the district court stated that "[a]s I in d ic a te d , I believe a sentence of that kind is necessary to adequately and a p p r o p r ia te ly address the factors the Court should consider in determining a s e n te n c e to impose under Section 3583(a)1 [sic] of Title 18. And I've concluded t h a t it is a reasonable sentence in this case." This statement confirms that the c o u r t based the sentence on the § 3553(a) factors and mentioned the r e a s o n a b le n e s s of the sentence only as support for its ultimate determination. Further, the record demonstrates that the district court considered and based t h e sentence on the § 3553(a) factors, including Maldonado-Chimal's history and c h a r a c t e r is t ic s , his risk of recidivism, and the need for deterrence and to p r o m o t e respect for the law. As such, we find no plain error on the part of the d is t r ic t court. See id. at 1429. A F F IR M E D .

Although the district court erroneously referred to § 3553(a) as § 3583(a), it is clear from the context of the opinion that the court's intended reference was § 3553(a).

1

4