USA v. Gilbert Serrano, Jr.

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USA v. Gilbert Serrano, Jr. Doc. 0 Case: 09-11189 Document: 00511215982 Page: 1 Date Filed: 08/26/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 09-11189 S u m m a r y Calendar August 26, 2010 Lyle W. Cayce Clerk U N IT E D STATES OF AMERICA, P la in t iff - Appellee v. G I L B E R T SERRANO, JR., D e fe n d a n t - Appellant 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-71-1 B e fo r e DAVIS, SMITH, and SOUTHWICK, Circuit Judges. P E R CURIAM:* G ilb e r t Serrano, Jr., pled guilty to a single count of possession with intent t o distribute a controlled substance. The district court departed upwardly from t h e applicable guidelines sentencing range and sentenced Serrano to 180 months o f imprisonment and a five-year term of supervised release. Serrano timely a p p e a le d . S e r r a n o argues that the district court inappropriately departed based on U .S .S .G . 5K2.6 and 5K2.17. The district court found that either provision 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-11189 Document: 00511215982 Page: 2 No. 09-11189 Date Filed: 08/26/2010 in d e p e n d e n t ly justified a departure. The record reflects that the district court d e p a r t e d under Section 5K2.6 based on its determination that the number and n a t u r e of the weapons, as well as their proximity to small children, was not a d e q u a t e ly accounted for by the two-level increase for weapon possession under U .S .S .G . 2D1.1(b)(1). As the increase found at Section 2D1.1(b)(1) is triggered b y the mere possession of any dangerous weapon, such possession encompasses t h e heartland of offense characteristics accounted for in Section 2D1.1. The d is t r ic t court found that the substantial distinction between mere possession of a n y weapon and the possession of numerous semi-automatic weapons, some of t h e m loaded with large amounts of ammunition in close proximity to small c h ild r e n , took this case out of the heartland of Section 2D1.1(b)(1). The district c o u r t acted within its wide discretion in departing upwardly under S e c tio n 5K2.6. See United States v. Desselle, 450 F.3d 179, 182 (5th Cir. 2006). That being the case, we do not reach the departure under Section 5K2.17. S e r r a n o also challenges the extent of the departure, from an advisory r a n g e of 120 to 135 months up to 180 months. In addition, to the extent and n a t u r e of Serrano's possession of illegal narcotics and firearms in his family's h o m e , the district court cited as its reasons for the extent of the departure the n e e d to achieve the objectives of punishment, deterrence, and protection of the p u b lic . Under the facts of this case, and given the district court's wide discretion in fashioning a sentence, neither the degree of departure nor the sentence as a w h o le is unreasonable. United States v. Rajwani, 476 F.3d 243, 250 (5th Cir.), m o d ifie d on other grounds, 479 F.3d 904 (5th Cir. 2007). A F F IR M E D . 2

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