United States v. Gutierrez

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 99-21147
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JUAN HIJINIO GUTIERREZ,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
(H-99-CR-299-1)
_________________________
February 12, 2001
Before REYNALDO G. GARZA, DAVIS
and JONES, Circuit Judges.
PER CURIAM:*
Juan Gutierrez contends that in sentencing, the
district court erred in departing upward from 16 to
19 in assessing his offense level. Concluding that
the court relied on permissible factors for
departure, made a reasonable determination that
the factors removed the case from the heartland of
the applicable guideline, and did not abuse its
discretion in the degree of the upward departure,
we affirm.
I.
Gutierrez pleaded guilty to count 1 of an in-
dictment charging him with being a felon in pos-
session of a firearm in violation of 18 U.S.C.
§§ 922(g)(1) and 924 (a)(2).1 The probation
officer determined that Gutierrez had an
offense level of 16 and a criminal history
*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determined that this opinion should not be published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.
1 Acting on a tip that Gutierrez was a felon and
had been seen in possession of firearms and that he
and others were planning a robbery of five to
fifteen kilograms of cocaine, Bureau of Alcohol,
Tobacco, and Firearms agents executed two search
warrants and found five guns in Gutierrez’s vehicle
and residence. Gutierrez admitted that three of the
guns belonged to him.

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2
category of VI, based on a total criminal
history score of 14. His guideline-
imprisonment range was 46-57 months; the
statutory maximum was ten years.
The probation officer noted that Gutierrez’s
criminal history score did not reflect the se-
riousness of his prior criminal conduct and re-
commended an upward departure. Although
Gutierrez did not file written objections to the
presentence report (“PSR”), the question
whether an upward departure was warranted
was argued at the sentencing hearing. The
court overruled Gutierrez’s objection, adopted
the findings and conclusions in the PSR, and
departed upward by three offense levels.
II.
Under Koon v. United States, 518 U.S. 81
(1996), this court’s
analysis of a district court’s decision to
depart consists of three separate
determinations. An appellate court must
ask: (1) whether the factors relied on by
the district court for departure are
permissible factors under the Guidelines;
(2) whether the departure factors, as
supported by evidence in the record,
remove the case from the heartland of
the applicable guideline; and (3) whether
the degree of departure is reasonable.
United States v. Threadgill, 172 F.3d 357, 374
(5th Cir.) (footnote omitted), cert. denied,
120 S. Ct. 172 (1999).
In determining whether the factors relied on
are permissible, we consider whether “the
departure factor is forbidden, encouraged, dis-
couraged, or unmentioned by the Guidelines.”
Id. (discussing Koon, 518 U.S. at 92-96). “If
the departure factor is not forbidden, the
district court may presumably depart on that
factor although the appropriate circumstances
will vary depending on whether the factor is
encouraged, discouraged, or unmentioned.”
Id. at 375.
If a factor is encouraged, courts can de-
part only “if the applicable Guideline
does not already take it into account.”
If the factor is discouraged, or
encouraged but already taken into
account by the applicable guideline,
courts can depart “only if the factor is
present to an exceptional degree or in
some other way makes the case different
from the ordinary case where the factor
is present.” If the factor is
unmentioned, “the court must, after
considering the structure and theory of
both relevant individual guidelines and
the Guidelines taken as a whole[,]
decide whether the factor is sufficient to
take the case out of the Guideline’s
heartland.”
Id. (quoting Koon, 518 U.S. at 94-96)
(internal quotation marks and brackets
omitted).
So, whether a given factor is
permissible depends on how the factor is
classified. An impermissible factor is a
forbidden factor, a discouraged factor
not present to an exceptional degree, or
an encouraged factor already considered
by the Guidelines and not present to an
exceptional degree. All other factors
cannot be precluded categorically as a
possible basis for departure.
Id. (citing Koon, 518 U.S. at 94-96) (internal
citation omitted).

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We do not defer to the district court’s legal
determinations, such as whether a factor is a
permissible basis for departure. Id. (citing
Koon, 518 U.S. at 100). Factual
determinations, however, are entitled to
“substantial deference.” Id. (citing Koon, 518
U.S. at 97-99). “[W]hen a district court
decides to depart based on the particular facts
of a case, it is acting within its special
competence. Accordingly, it is the
near-exclusive province of the district court to
decide whether a particular factor, or set of
factors, removes a case from the applicable
heartland.” Id. at 376 (citing Koon, 518 U.S.
at 376) (internal citations omitted).
The district court gave the following
reasons for its upward departure:
Keeping in mind that he was on
bond when some of this took place,2 to-
gether with, most importantly, his
criminal history, he is before the Court
with at least four prior felony
convictions, as identified in Part F of the
report, numerous additional criminal
charges were either dismissed or treated
as related cases.
The criminal history points of 16 in
the Court’s mind does not truly address
his criminal history.3 While on bond,
three days after his plea in this present
case, he was arrested in Harris County
on new felony charges. To my mind,
this behavior demonstrates a total
disregard for the law and illustrates a
propensity a [sic] recidivism.
An upward departure under
Guideline 4A1.3 is going to be ordered.
In determining the extent of the
departure, it's noted the defendant is
already at a Criminal History Category
of 6, which is the maximum; therefore, a
departure upwards of three levels on the
vertical access [sic] of the sentencing
table to an offense level of 19 the Court
feels is appropriate.
Gutierrez’s counsel objected:
Since the Court has decided to depart
upward, I would respectfully point out
the information in Section 4A1.3 in the
guidelines specifically discusses
departures from Category 6. We would
object to the upward departure. The
guidelines apparently do not
contemplate an upward departure where
the seriousness of the defendant’s
criminal record is other than egregious.
I would point out to the CourtSSI am
sure Your Honor already has looked at
thisSSthese are auto thefts.
. . .
I don’t believe this is the kind of
egregious criminal history that the
guidelines, the drafters of the guidelines
contemplated.
2 While Gutierrez was released on bond
following entry of his guilty plea, he was arrested
for possession of stolen property. Although
Gutierrez denied at sentencing that he knew the
property was stolen, his attorney conceded that it
did appear that Gutierrez was still involved in
criminal conduct.
3 Gutierrez actually had 14 criminal history
points, one more than the 13 points required for a
criminal history category VI. Gutierrez had an offense level of 16.

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4
Counsel also objected that the district court
had failed to articulate reasons for departing
three offense levels, as opposed to one or two.
The probation officer observed that Gutier-
rez’s criminal history included more than mere
auto theft; it also included escape attempts,
and several of the offenses involved weapons.
The government noted that Gutierrez had
convictions for resisting arrest and possession
of marihuana. Gutierrez’s related crimes
involved fleeing or attempting to elude police
officers, criminal mischief, and carrying
firearms.
The district court concluded that the
reasons for its upward departure had been
adequately stated and that if they were not,
additional reasons mentioned by the probation
officer and the prosecutor provided “reasons
encompassed in the Court’s decision to
upward depart three levels.”
III.
Our review of the sentencing begins with a
determination of whether the court relied on
impermissible factors. Here, it did not.
A.
Gutierrez asserts that his two
misdemeanors that were not counted as part of
his criminal history score were not permissible
factors for upward departure. The first of the
uncounted misdemeanor convictions was for
resisting arrest related to a 1994 felony
conviction for unlawful use of a motor vehicle.
Gutierrez attempted to elude officers and
crashed the vehicle into a fence, then fled on
foot but was subdued by an officer. During
their scuffle, Gutierrez struck the officer with
his fists and tried to choke him. The officer
suffered a bad knee injury and cuts and
abrasions.
The second uncounted misdemeanor
conviction was for possession of marihuana re-
lated to Gutierrez’s 1996 felony conviction for
unauthorized use of a motor vehicle. A baggie
of marihuana was found in his pocket at the
time of arrest.4
Gutierrez argues that these misdemeanor
convictions were impermissible factors. He
contends that although it is permissible to con-
sider uncounted convictions that are not
factually related to counted offenses, but were
consolidated for sentencing, it is impermissible
to consider uncounted convictions that are
factually related to the offenses that were
counted. Gutierrez relies on U.S.S.G.
§ 4A1.2, comment 3, to make this distinction.
Gutierrez has misread the comment,
however. It does not say that related
convictions arising from the same incident are
impermissible bases of departure. In fact, it
treats all related convictions the same,
regardless of whether they arose from the
same incident. Any uncounted, related
convictions may form the basis of a departure,
because, under the guidelines, “assignment of
a single set of points [to related convictions]
may not adequately reflect the seriousness of
the defendant’s criminal history or the
frequency with which he has committed
crimes.” U.S.S.G. § 4A1.2, comment 3. The
district court therefore did not err in
considering Gut ierrez’s uncounted
misdemeanors.
4 A gun was also found in the purse of Gutier-
rez’s female passenger. The passengers told au-
thorities that the gun belonged to Gutierrez and that
Gutierrez had forced her to put the gun in her
purse.

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5
B.
Gutierrez asserts that the consideration of
his arrest while on bond in this case was an
impermissible factor, because it was a factor
that had already been taken into account, or
alternatively, because a mere arrest record is
an impermissible factor. Gutierrez points out
that the court denied a reduction for
acceptance of responsibility based on this
subsequent arrest while on bond. He was
arrested three days after his guilty plea in this
case on charges of possession of stolen
property; he contends that, under the Koon
rubric, the arrest constituted an “encouraged
factor already considered by the guidelines and
not present to an exceptional degree.”
Threadgill, 172 F.3d at 375.
Gutierrez is conflating the denial of a
downward adjustment for acceptance of
responsibility with the initial determination of
a defendant’s offense level. A denial of a
downward adjustment, based on one factor or
a number of factors, does not mean that those
factors have been taken into account in
determining the offense level. Thus, a court
may use the same factor both to deny a
downward departure and to give an upward
departure.
For example, if a rapist admits that he will
rape again when possible, this is not given any
points in determining his offense level. A
court could, however, use this fact both to
deny a downward departure for acceptance of
responsibility and to depart upward, because
the rapist presents a high risk of recidivism.
This does not constitute erroneous double-
counting of the same factor, but is simply use
of the factor to decide whether to depart up or
down.
Gutierrez argues, alternatively, that his ar-
rest while on bond is an impermissible factor
because although § 4A1.3 provides that the
sentencing court may consider “all relevant
information” in deciding whether to depart, it
also states that “a prior arrest record itself
shall not be considered . . . .” § 4A1.3. In
United States v. Cantu-Dominguez, 898 F.2d
968 (5th Cir. 1990), we vacated and remanded
a sentence involving an upward departure in
which the only reason given for the departure
was the defendant’s prior arrest record. We
reasoned:
[T]he district court stated specifically
that it did not find that Cantu-Domin-
guez had committed the various offenses
for which he had been arrested. The
court thus was left with nothing but a
history of arrests that did not result in
convictions. This is not the type of
“reliable information” that justifies a
departure from the applicable sentencing
range. Indeed, the guidelines explicitly
reject reliance on a prior arrest record
alone as a basis for an upward
departure.
Id. at 970-71.
The court inquired whether it appeared
likely that Gutierrez had committed the offense
for which he was arrested while on bond, and
even Gutierrez’s attorney agreed that it looked
likely that Gutierrez was guilty of possession
of stolen propert y. This is more than a mere
arrest record and therefore may be considered
in deciding to depart upward.5 Further, a
5 See United States v. Ashburn, 38 F.3d 803,
807-08 (5th Cir. 1994) (en banc) (stating that un-
der § 1B1.4, the court could “consider, without
limitation, any information concerning the
background, character and conduct of the

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court, in departing upward, may consider the
likelihood of recidivism.6
C.
Gutierrez similarly argues that pending and
dismissed charges are forbiddenSSor at best
highly infrequentSSbases for departure. Gu-
tierrez had four prior dismissed charges. The
firstSSfor burglary of a motor vehicleSSwas
dismissed at the time of the guilty plea for un-
authorized use of a motor vehicle in 1991.
The secondSSfor fleeing or attempting to elude
a police officerSSwas dismissed in 1991,
because Gutierrez had been convicted in a
related case. The other two dismissed charg-
esSSfor criminal mischief and for carrying a
weaponSSwere dismissed for unspecified rea-
sons in 1997. The district court stated that it
had considered these pending and dismissed
charges in deciding to depart upward.
Our analysis of the permissibility of
considering these dismissed charges tracks our
analysis of the use of Gutierrez’s arrest while
on bond in considering an upward departure.
Here also, a court must rely on more than a
mere arrest record; there must be evidence that
the defendant committed the crimes he was
charged with and was not simply erroneously
charged.
The two charges that were dismissed
pursuant to a plea agreement are permissible
factors, because they have some greater
measure of reliability than does a mere arrest
record. Thus, in Ashburn we held that the
court had properly considered prior criminal
conduct related to dismissed counts of the
indictment in that case. 38 F.3d at 807-08.
We noted that, under § 4A1.3(e), a court is
authorized to consider “prior similar adult
criminal conduct not resulting in criminal
conviction.” Id. at 807.
The two charges that were dismissed for
unknown reasons are more troubling bases for
departure. There is no way to know whether
these charges were dismissed because they
lacked merit or for other reasons. Fortunately,
we do not need to decide whether these
dismissed charges were permissible factors,
because there were sufficient other factors
upon which the court could base its decision.7
D.
Gutierrez contends that it was
impermissible to depart upward because he
had only fourt een criminal history
pointsSSonly one more than the minimum
needed to be categorized in criminal history
category VI. He cites no portion of the
guidelines and no cases to support this
contention, however. The guidelines say
departure is appropriate when a criminal’s
offense level does not adequately reflect his
dangerousness or likelihood of recidivism. We
therefore reject Gutierrez’s circular argument
that a court cannot raise a criminal’s offense
defendant, unless otherwise prohibited by law”)
(citation omitted).
6 See U.S.S.G. § 4A1.3; United States v. Con-
nely, 156 F.3d 978, 984 (9th Cir.) (reasoning that
upward departure under § 4A1.3 is “justified
purely on the basis of defendant’s likelihood of
recidivism” and whether his likelihood of
recidivism is under-represented by his criminal
history category), cert. denied, 525 U.S. 1128
(1998).
7 See United States v. Kay, 83 F.3d 98, 101
(5th Cir. 1996) (“A sentence may be found to be
reasonable even though one or more of the reasons
assigned in justification of the departure be deemed
invalid, provided that the remaining reasons suffice
to justify the departure.”)

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7
level to group him with defendants exhibiting
more serious criminal conduct because raising
his offense level would group the criminal with
those who exhibit more serious criminal
conduct.
IV.
Having determined that the factors relied on
were permissible, we consider whether they
were sufficient to remove the case from the
heartland of the applicable guideline, keeping
in mind that when a district court determines
that a set of factors removes a case from the
applicable heartland, it is acting within its
special competence. A court may depart
upward “[i]f reliable information indicates that
the criminal history category does not
adequately reflect the seriousness of the
defendant’s past criminal conduct or the like-
lihood that the defendant will commit other
crimes[.]” U.S.S.G. § 4A1.3, p.s.; see also
18 U.S.C. § 3553(b).
In Ashburn, 38 F.3d at 810, we affirmed
the upward departure “in light of the evidence
of numerous instances of past criminal
conduct, which were not considered in the
criminal history calculation, and the
overwhelming indication that the defendant
was inclined to return to a similar course of
behavior.” In United States v. Harrington,
114 F.3d 517, 519-20 (5th Cir. 1997), we
affirmed the upward departure based on three
prior contempt-of-court convictions and one
prior reckless-driving conviction, which had
not been included in the original computation
of the criminal history category. The district
court had reasoned that the convictions
demonstrated the defendant’s “manifold
disrespect for the law and our judicial system.”
Id. at 520.8
Under our standard of substantial
deference, we conclude that the district court
did not err in deciding that these factors
removed Gutierrez’s case from the heartland
of the applicable guideline. The uncounted
misdemeanor charges were particularly telling
as to the seriousness of Gutierrez’s criminal
history. The fact that he was willing to attack
and try to choke a police officer strongly sup-
ports the determination that this case is outside
of the heartland of an offense level of 16. The
likelihood that Gutierrez was in felony
possession of stolen property three days after
he pleaded guilty also strongly supports the
determination that he presents more risk of
recidivism than is typical of an offense level of
16.
Lastly, the charges that were dismissed
pursuant to plea bargains provide further sup-
port for the departure. The fact that Gutier-
rez had earlier been charged with burglary of
a motor vehicle and that he attempted to elude
arrest on another occasion lends credence to
the determination that this case is outside the
heartland.
V.
Having determined that the district court
relied on permissible factors and did not err in
deciding that these factors removed the case
from the heartland of typical cases with
offense levels of 16, we turn to the third
8 See also United States v. Pennington, 9 F.3d
1116, 1118 (5th Cir. 1993) (concluding that de-
fendant’s long history of crime, which included
several prior convictions that were not included in
his criminal history calculation, “demonstrated a
disrespect for the law not adequately reflected by a
category VI criminal history”).

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question of the Koon test: whether the degree
of departure is reasonable. Our review of the
record, again with substantial deference to the
trial court, leads us to conclude that the
departure was reasonable.
By the time Gutierrez reached age 27, he
had four felony convictions, each of which
involved attempts to elude police and/or resist
arrest. These facts, when considered with the
related but uncounted misdemeanor
convictions, the dismissed charges showing a
history of theft and attempts to elude police,
and the probability that Gutierrez returned to
crime immediately after pleading guilty, are
more than sufficient under the “substantial
deference” standard to support the decision to
depart upward three levels. See Threadgill,
172 F.3d at 375.
VI.
Gutierrez contends that the court erred in
increasing the offense level from 16 to 19
without stating adequate reasons why the in-
termediate offense levels of 17 and 18 were
not adequate. This argument goes to the rea-
sonableness of the departure. See Threadgill,
172 F.3d at 374.
When making an upward departure, a court
should consider each intermediate criminal
history category or offense level and explain
why it is inadequate and why the sentence
imposed was appropriate.9 The policy
statement provides:
Where the court determines that the ex-
tent and nature of the defendant’s
criminal history, taken together, are
sufficient to warrant an upward
departure from Criminal History
Category VI, 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.
§ 4A1.3, p.s.; see also § 3553(c)(2).
Although a court should indicate the
reasons for its upward departure, it is not
required
to go through a ritualistic exercise in
which it mechanically discusses each
criminal history category [or offense lev-
el] it rejects en route to the category [or
offense level] that it selects. Ordinarily
the district court’s reasons for rejecting
intermediate categories [or offense
levels] will clearly be implicit, if not
explicit, in the court’s explanation for its
departure from the category [or level]
calculated under the guidelines and its
explanation for the category [or level] it
has chosen as appropriate.
Lambert, 984 F.2d at 663; see also Daughen-
baugh, 49 F.3d at 175.
The district court did follow § 4A1.3 in
moving incrementally down the guideline sen-
tencing grid. Although it might have better
explained its reasons for rejecting the
intermediate offense levels, it is evident that it
rejected those levels and rejected them as
being inadequate.10
9 United States v. Daughenbaugh, 49 F.3d 171,
175 (5th Cir. 1995) (offense levels); United States
v. Lambert, 984 F.2d 658, 662-63 (5th Cir. 1993)
(en banc) (criminal history categories).
10 See Lambert, 984 F.2d at 663 ("Although the
court’'s decision could have been more explicitly

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AFFIRMED.
tied to the incremental character of criminal history
departures, we are satisfied that the appellate
record presents a basis upon which we may
reasonably conclude that the district court
thoroughly considered the appropriate guidelines in
arriving at its ultimate sentence.).

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