United States v. Castillo

* 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40718
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PEDRO CASTILLO, JR,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-01-CR-592-1
--------------------
December 27, 2002
Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Pedro Castillo, Jr., appeals from his sentence for being a
felon in possession of ammunition. He contends that the district
court erred by adjusting his offense level because a weapon found
on his son was stolen and that the district court erred by
departing upward from the guideline offense level.
The district court did not err by adjusting Castillo’s
offense level because the weapon was stolen. See U.S.S.G.

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§ 2K2.1(b)(4). The finding that Castillo knew about the stolen
weapon was not clearly erroneous. United States v. Fair,
979 F.2d 1037, 1038 (5th Cir. 1992).
The district court did not abuse its discretion by departing
upward from the guideline sentencing range in Castillo’s case.
United States v. Ashburn, 38 F.3d 803, 807 (5th Cir. 1994)(en
banc). We need not address whether all of the grounds on which
the district court based its upward departure decision were
appropriate. Castillo was charged with murdering his wife after
she consented for the family residence to be searched in
conjunction with the felon-in-possession offense. He also was
charged with aggravated assault while in jail, and two previous
convictions involving violent behavior had resulted in a total of
two criminal history points. An upward departure on the factors
mentioned above was appropriate. See U.S.S.G. § 4A1.3, p.s. The
district court’s discussion of the 10-year term of imprisonment
ultimately chosen indicated that Castillo would have received
that sentence regardless of consideration of any conceivably
impermissible departure factors. Castillo’s substantial rights
were not violated by the departure. United States v. Cade, 279
F.3d 265, 270 (5th Cir. 2002).
The district court stated that it had considered every
offense level up to the statutory maximum of 10 years’
imprisonment and that none of them satisfied the court’s concerns
regarding the reasons for departure. The district court

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No. 02-40718
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adequately explained why it chose the 10-year sentence and why
intermediate categories were unsatisfactory. United States
v. Daugenbaugh, 49 F.3d 171, 173-74 (5th Cir. 1995); United
States v. Lambert, 984 F.2d 658, 662-63 (5th Cir. 1993)(en banc).
AFFIRMED.

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