USA v. Jacinto Lopez-Velasquez

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAY 21, 2010
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 09-15305
Non-Argument Calendar
________________________
D. C. Docket No. 09-00002-CR-JEC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JACINTO LOPEZ-VELASQUEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(May 21, 2010)
Before TJOFLAT, CARNES and WILSON, Circuit Judges.
PER CURIAM:

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Jacinto Lopez-Velasquez appeals his 46-month sentence following his guilty
plea to illegal re-entry of an aggravated felon in violation of 8 U.S.C. § 1326(a)
and (b)(2). He contends that the district court erred in applying an upward
departure under U.S.S.G. § 4A1.3. Lopez-Velasquez also argues that his sentence
was substantively unreasonable.
I.
Lopez-Velasquez asserts two challenges to the district court’s upward
departure. He contends that the district court erred in relying upon his remote
convictions to impose an upward departure because they were dissimilar
convictions that do not fit within § 4A1.3(A)–(E). Lopez-Velasquez’s argument is
without merit. As grounds for a § 4A1.3 departure, the guidelines permit the
sentencing court to consider outdated convictions that are dissimilar, but “serious.”
See U.S.S.G. § 4A1.2, comment (n.8); United States v. Brown, 51 F.3d 233, 234
(11th Cir. 1995). The district court concluded that Lopez-Velasquez’s remote
convictions were serious because they showed a pattern of criminal behavior that
spanned over a long period of time. The district court noted that Lopez-
Velasquez’s convictions started in the late 1980s and observed that “the conduct
implicated resources with communities that had to deal with the repeated conduct
and quality of life issues with folks that were the victims of some of these
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offenses.” See Brown, 51 F.3d at 234 (rejecting defendant’s argument that it was
improper to consider his three prior convictions where the district court concluded
that they showed “a pattern which as a whole [was] very serious . . . because it
continued over such a long period of time”). The district court did not err in
relying upon Lopez-Velasquez’s remote convictions.
Lopez-Velasquez also contends that the district court failed to follow the
proper procedure for imposing a departure. He argues that the district court did not
provide a reasoned basis for increasing his criminal history category from II to V.
“When departing upward under § 4A1.3, the sentencing court generally is required
to compare the defendant to other defendants in the next highest criminal history
category until an appropriate category is reached.” United States v. Maurice, 69
F.3d 1553, 1559 (11th Cir. 1995); see also United States v. Williams, 989 F.2d
1137, 1142 (11th Cir. 1993). However, when a sentencing court selects a higher
criminal history category under § 4A1.3 by adding point totals for remote
convictions, an explanation of that calculation serves as an adequate explanation
for the inappropriateness of the intervening criminal history categories. Maurice,
69 F.3d at 1559.
Lopez-Velasquez’s argument again lacks merit. The district court
methodically went through each of his remote convictions and assigned points to
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them. After doing so, the district court concluded that Lopez-Velasquez’s remote
convictions would add 11 points, resulting in a criminal history category of VI.
The district court, however, placed Lopez-Velasquez in a criminal history category
of V, observing that the “math gets you to six” but that it was “going to be slightly
more lenient” because of the sincerity of his remorsefulness. The district court
provided an adequate explanation for the departure from criminal history category
II to V.
II.
Lopez-Velasquez also challenges the substantive reasonableness of his
sentence. We review a sentence for reasonableness under a “deferential abuse-of-
discretion standard.” Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 591
(2007). A sentence must be both procedurally and substantively reasonable.
United States v. Livesay, 525 F.3d 1081, 1090–91 (11th Cir. 2008). In assessing
the substantive reasonableness of a sentence, we review the totality of the
circumstances “including the extent of any variance from the Guidelines range.”
See Gall, 552 U.S. at 51, 128 S.Ct. at 597. “[T]he party who challenges the
sentence bears the burden of establishing that the sentence is unreasonable in the
light of both that record and the factors in section 3553(a).” United States v.
Talley, 431 F.3d 784, 788 (11th Cir. 2005).
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Lopez-Velasquez contends that his 46-month sentence was greater than
necessary to achieve the purposes of § 3553(a) because his remote convictions
were related to his drug addiction and recurring homelessness. He argues that a
sentence within the advisory guidelines would have adequately achieved the
purposes of sentencing. Given Lopez-Velasquez’s extensive criminal history and
repeated deportations, we cannot say that the district court’s sentence, which was
well below the statutory maximum, was unreasonable.
AFFIRMED.
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