USA v. Michael A. Ealey

1The Honorable Mark W. Bennett, United States District Judge for the Northern
District of Iowa.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 99-3413
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Armando Hernandez-Ramos, also *
known as Armando Lopez-Gonzalez, * [UNPUBLISHED]
also known as Fernando Hernandez- *
Lopez, *
*
Appellant. *
___________
Submitted: July 5, 2000
Filed: July 12, 2000
___________
Before LOKEN, FAGG, and HANSEN, Circuit Judges.
___________
PER CURIAM.
Armando Hernandez-Ramos pleaded guilty to illegal re-entry into the United
States after deportation, in violation of 8 U.S.C. § 1326(a). The district court1 departed
upward from a Category III to a Category VI criminal history, and imposed a sentence
of eighteen months imprisonment and one year supervised release. On appeal,

-- 1 of 3 --

-2-
Hernandez-Ramos argues that the court abused its discretion by departing upward, and
erred by failing to compare him to defendants at Categories IV and V before selecting
Category VI.
We find no abuse of discretion. See United States v. Herr, 202 F.3d 1014, 1016
(8th Cir. 2000) (standard of review). As the district court noted, the convictions that
were counted in Hernandez-Ramos’s criminal history score were committed within a
span of less than two-and-a-half years, showing a propensity for recidivism; dismissed
juvenile charges for possession of cocaine with intent to deliver and distribution of
cocaine, which were not counted in Hernandez-Ramos’s criminal history, were
nonetheless serious offenses; and Hernandez-Ramos had twice illegally re-entered the
United States after deportation, but had been prosecuted only the second time, avoiding
punishment for the first offense.
While the district court was required to compare Hernandez-Ramos’s criminal
history with the criminal histories of offenders in Categories IV and V, we uphold the
upward departure to Category VI because the court’s findings adequately explain and
support the departure, although it failed to specifically mention considering each
intermediate criminal history category. See United States v. Collins, 104 F.3d 143, 145
(8th Cir. 1997).
Accordingly, we affirm the judgment of the district court.

-- 2 of 3 --

-3-
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

-- 3 of 3 --