U.S. v. Gonzales-Ortega

• Decision Date: 10 October 2003
• Docket Number: No. 02-4133.,02-4133.
• Citation: 346 F.3d 800
• Parties: UNITED STATES of America, Appellee, v. Mario GONZALES-ORTEGA, also known as Daniel Cano, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

346 F.3d 800

UNITED STATES of America, Appellee, v. Mario GONZALES-ORTEGA, also known as Daniel Cano, Appellant.

No. 02-4133.

United States Court of Appeals, Eighth Circuit.

Submitted: June 10, 2003.

Filed: October 10, 2003.

Rehearing and Rehearing En Banc Denied: November 19, 2003.

John P. Messina, argued, Des Moines, IA, for Appellant.

Peter E. Deegan, Jr., AUSA, argued, Cedar Rapids, IA (Robert L. Teig, AUSA, Cedar Rapids, IA, on the brief), for Appellee.

Before BOWMAN, BEAM, and BYE, Circuit Judges.

BOWMAN, Circuit Judge.

Mario Gonzales-Ortega pleaded guilty to illegally reentering the United States. See 8 U.S.C. § 1326(a) & (b)(2) (2000). The District Court¹ determined that Gonzales-Ortega's criminal history level of VI did not adequately reflect the defendant's criminal history and the likelihood that he would commit future crimes and departed upwards by five offense levels and sentenced him to 150 months in prison. Gonzales-Ortega appeals this departure and we affirm.

The recently-enacted PROTECT Act requires that a district court "state[] with specificity" in the "written order of judgment" its reasons for departing upwards or downwards from the applicable sentencing guideline. See PROTECT Act, Pub.L. No. 108-21, § 401(c), 117 Stat. 650, 669 (2003) (amending 18 U.S.C. § 3553(c)); United States v. Aguilar-Lopez, 329 F.3d 960, 962 (8th Cir.2003). The Act also requires that we apply a de novo standard of review when the sentence imposed is outside the applicable guideline range and the departure has not been justified in a written order or the departure is based on a factor that: "does not advance the objectives set forth in section 3553(a)(2)"; "is not authorized under section 3553(b)"; or is simply "not justified by the facts of the case." See PROTECT Act, Pub.L. No. 108-21, § 401(d), 117 Stat. 650, 670 (2003) (amending 18 U.S.C. § 3742(e)). Although Gonzales-Ortega was sentenced before the PROTECT Act became law, the Act, because it is procedural in nature, does apply to his pending appeal. United States v. Hutman, 339 F.3d 773, 775 (8th Cir.2003).

In this case, the District Court determined an upward departure was warranted under United States Sentencing Guideline (U.S.S.G.) § 4A1.3 (2002) because Gonzales-Ortega's "criminal history category significantly underrepresents the seriousness of the Defendant's criminal conduct or the likelihood that the Defendant will commit further crimes." Transcript of Sentencing Hearing at 29. Gonzales-Ortega's base offense level was twenty-one and his total criminal history score of thirty-one put him in category VI. Thus, his initial sentencing range was 77-96 months. For a defendant to reach category VI, however, only a criminal-history score of thirteen is needed. Thus, Gonzales-Ortega was eighteen criminal-history points above the minimum required to place him in category VI. When it structured the departure, the District Court departed upwards one offense level for every three such criminal-history points. This resulted in an increase in Gonzales-Ortega's base-offense level of only five levels (15÷3=5) rather than six levels (18÷3=6), because the District Court reasoned that if there were criminal history categories above category VI, category VI would include points thirteen through fifteen, the next category would include points sixteen through eighteen, and so on. The District Court did not increase Gonzales-Ortega's sentence by a sixth offense level to reflect the sixteenth criminal-history point that fell beyond the five-level increase in question. The departure placed Gonzales-Ortega in offense-level 26 and the District Court sentenced him at the highest end of the 120-150 month range. Gonzales-Ortega now appeals this sentence.

The Sentencing Guidelines instruct that where a defendant's "criminal history category does not adequately reflect the seriousness of the defendant's past criminal conduct or the likelihood that the defendant will commit other crimes, the [district] court may consider imposing a sentence departing from the otherwise applicable guideline range." U.S.S.G. § 4A1.3. Normally, § 4A1.3 explains, such a departure is structured by moving horizontally within the Guidelines, from criminal history category III to IV, for example. When the defendant is within category VI, however, this is not possible and the Guidelines instruct that in these cases "the court should structure the departure by moving incrementally down the sentencing table to the next higher offense level in Criminal History Category VI until it finds a guideline range appropriate to the case." Id. This is all the guidance that the Guidelines provide for structuring such a departure. The Guidelines do note that the nature of the prior offenses and not the sheer number of prior offenses "is often more indicative of the seriousness of the defendant's criminal record." Id. Consequently, a district court should consider the nature and extent of a defendant's criminal history when contemplating and structuring an upward departure from category VI.

Our review of Gonzales-Ortega's criminal history convinces us that the District Court did not err when it increased his offense level by five levels and sentenced him to 150 months in prison. Gonzales-Ortega's criminal history is extensive to say the least. By our count, Gonzales-Ortega has more than thirty prior adult convictions of record, many of which were not included in his criminal history score. It is true that a number of these offenses were for "petty" crimes or for intoxication offenses, but these petty offenses do not properly characterize Gonzales-Ortega's criminal history. Rather, his is a criminal history replete with drug crimes, illegal entries and deportations, and a more recent turn towards violence and other crimes that present an obvious and growing danger towards society. Gonzales-Ortega's habit of being deported, returning to the United States, and being deported again (usually after committing another crime) is particularly troublesome. He is not an illegal alien who has spent years or decades within the United States as a productive member of society. Instead, Gonzales-Ortega has apparently repeatedly returned to the United States in order to commit crimes. Further, Gonzales-Ortega is not an...