USA v. Alejandro Villarreal

Filing 920100927

Opinion

Case: 09-41003

Document: 00511244467

Page: 1

Date Filed: 09/24/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-41003 S u m m a r y Calendar September 24, 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. A L E J A N D R O VILLARREAL, 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 Southern District of Texas U S D C No. 2:08-CR-773-1

B e fo r e JOLLY, GARZA, and STEWART, Circuit Judges. P E R CURIAM:* A le ja n d r o Villarreal has appealed the sentence imposed following his g u i l t y plea to two counts of transporting unlawful aliens. The district court

d e p a r t e d upward in sentencing Villarreal to concurrent thirty-nine month terms o f imprisonment and to concurrent three-year periods of supervised release. After United States v. Booker, 543 U.S. 220 (2005), "appellate review of s e n te n c in g decisions is limited to determining whether they are `reasonable.'" Gall v. United States, 552 U.S. 38, 46, 51 (2007). To the extent that Villarreal
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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fa ile d to preserve error below, this court's review is for plain error. See United S ta te s v. Jones, 489 F.3d 679, 681 (5th Cir. 2007). Under that standard,

V illa r r e a l must "show (1) there was error, (2) the error was plain, (3) the error a ffe c t e d his `substantial rights,' and (4) the error seriously affected `the fairness, in t e g r it y or public reputation of judicial proceedings.'" Id. (quoting United States v . Olano, 507 U.S. 725, 732, 734 (1993)). "If reliable information indicates that the defendant's criminal history c a t e g o r y substantially under-represents the seriousness of the defendant's c r im in a l history or the likelihood that the defendant will commit other crimes, a n upward departure may be warranted." U.S.S.G. § 4A1.3(a)(1) (2008). In c o n s id e r in g whether to depart upward, the district court may consider, inter a lia : "Prior sentence(s) not used in computing the criminal history category"; and " P r io r similar adult criminal conduct not resulting in a criminal conviction." § 4A1.3(a)(2)(A) & (E). "A prior arrest record itself shall not be considered for p u r p o s e s of an upward departure." § 4A1.3(a)(3); see also Jones, 489 F.3d at 681 (" C o n s id e r a tio n of prior arrests by a district court in sentencing is error."). Villarreal contends that, in departing upward, the district court im p rop erly considered that two of the individuals he transported were juveniles. He argues that he received a two-level upward adjustment in offense level for t r a n s p o r t in g juveniles, and so, that fact was accounted for by the guidelines. Villarreal has not shown that the district court plainly erred in giving additional w e ig h t to the fact that several of the aliens were juveniles. See United States v. L o p e z -V e la s q u e z , 526 F.3d 804, 807 (5th Cir. 2008). V ill a r r e a l contends that his criminal history category, level IV, did not u n d e r s t a t e the seriousness of his criminal history because many of the offenses c o n s i d e r e d by the district court were considered in determining the criminal h is t o r y category. With respect to arrests that did not result in convictions, V illa r r e a l argues, one resulted in acquittal and the others were dismissed with

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Date Filed: 09/24/2010

n o reason noted. For that reason, he asserts, the evidence regarding those o ffe n s e s was unreliable. Although Villarreal did not object to the upward departure, he did argue in the district court that his prior arrests not resulting in convictions should not b e considered. Thus, any error on the part of the district court in considering the p r io r arrests has been reviewed for harmless error. See Jones, 489 F.3d at 681. In imposing the upward departure, the district court specifically m e n tio n e d Villarreal's unscored conviction of going armed with intent and the fa c t that Villarreal had threatened to kill a woman and two children in that o ffe n s e . Villarreal has not shown that the district court plainly erred in

c o n s id e r in g this offense and Villarreal's long history of violent behavior as a b a s is for departing upward from the guidelines range under § 4A1.3(a)(2)(A). See id. at 681-82; see also United States v. Pennington, 9 F.3d 1116, 1118 (5th C ir . 1993). Because those factors were properly considered and adequately s u p p o r t e d the upward departure, any error in considering the arrests not r e s u lt in g in a conviction was harmless. See Jones, 489 F.3d at 681. Villarreal has not briefed any issue with respect to the district court's fa ilu r e to explain the extent of the upward departure or the substantive r e a s o n a b le n e s s of the sentence. Issues not briefed on appeal are waived. See U n ite d States v. Waldrop, 404 F.3d 365, 368 n.1 (5th Cir. 2005); United States v . Narviz-Guerra, 148 F.3d 530, 537-38 (5th Cir. 1998). The judgment is AFFIRMED.

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