United States v. Earnest Washington

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 02-1923
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United States of America, *
*
Appellee, *
*
v. * Appeal from the United States
* District Court for the
Osvaldo Villalobos-Cuellar, also * Northern District of Iowa.
known as Osvaldo Cuellar *
Villalobos, also known as Raul * [UNPUBLISHED]
Flores, *
*
Appellant. *
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Submitted: December 11, 2002
Filed: January 7, 2003
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Before WOLLMAN, HEANEY, and MELLOY, Circuit Judges.
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PER CURIAM.
Osvaldo Villalobos-Cuellar, a Mexican citizen, was convicted of one count of
illegal reentry following deportation in violation of 8 U.S.C. §§ 1326(a) and (b). At
sentencing, the district court determined that the defendant’s criminal history category
did not adequately reflect the seriousness of his past conduct or account for the
likelihood of recidivism. Accordingly, the district court departed upward one

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criminal history category. Villalobos-Cuellar appeals the sentencing departure, and
we affirm.
As the district court noted, Villalobos-Cuellar has engaged in a number of
violent incidents during his time in the United States, including assaulting a police
officer and domestic assault. At sentencing, the district court admitted into evidence
a police narrative regarding the domestic assault conviction. This narrative indicated
that the defendant had punched his girlfriend with a closed fist, knocking her to the
ground, and continued the assault by kicking her head while wearing steel-toed work
boots. He then jumped on her legs and attempted to choke her. According to the
narrative, Villalobos-Cuellar then turned his aggression on his girlfriend’s five-year-
old daughter, but relented before physically assaulting her.
It appears the only reason that the assault resulted in a criminal investigation
was because the victim went to the hospital out of fear that her jaw had been broken;
once there, the paramedic saw fit to contact the police. The narrative makes clear that
the defendant had been involved in other similar conduct, but that the victim had not
reported those incidents to the authorities. During one particularly egregious assault
he attacked his girlfriend with a bullwhip and lashed her some thirty times.
The presentence report scored only one point for the domestic assault charge
and resulting conviction, and did not account for the uncharged acts of violence. The
district court believed that Villalobos-Cuellar’s resulting criminal history category did
not adequately reflect his past conduct, and departed upward by one criminal history
category. We review the district court’s application of the guidelines de novo, United
States v. Powell, 283 F.3d 946, 947 (8th Cir. 2002), and the district court’s decision
to depart from the guidelines for an abuse of discretion, United States v. Herr, 202
F.3d 1014, 1016 (8th Cir. 2000).

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1 Indeed, a person could be subjected to criminal prosecution for making false
statements in a police report. See Iowa Code § 718.6.
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A sentencing court may depart from the guidelines where the defendant’s
criminal history category does not accurately summarize the defendant’s past conduct
or take into account the likelihood of recidivism. U.S.S.G. § 4A1.3. However, the
basis for the departure must rest on “reliable information,” such as, prior
adjudications or similar adult conduct that did not result in a conviction. See id.
The district court did not abuse its discretion by departing upward in this
matter. The police narrative in this case qualifies as reliable information supporting
the departure, as it is the type of document that one would expect to contain truthful
statements.1 Moreover, it contained statements about what appears to be a pattern for
Villalobos-Cuellar: domestic violence. Sadly, however, the abuse here went
unreported until the victim needed to be hospitalized. In such a circumstance, we
cannot fault the district court for considering the defendant’s uncharged violent
conduct when pronouncing its sentence. Accordingly, we affirm.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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