EEOC v. Product Fabricators, Inc.

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-2004
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Jorge Luis Galeas-Pineda, also *
known as Lenin Castaneda, * [UNPUBLISHED]
*
Appellant. *
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Submitted: January 9, 2012
Filed: January 23, 2012
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Before MURPHY, BYE, and COLLOTON, Circuit Judges.
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PER CURIAM.
Jorge Luis Galeas-Pineda pleaded guilty to knowingly using fraudulent identity
documents in violation of 18 U.S.C. § 1546(a). The district court 1 sentenced him to
seventy-two months of imprisonment. Galeas-Pineda appeals his sentence contending
the district court committed procedural error by departing upward from the advisory
Guidelines range. He also contends he received a substantively unreasonable
sentence. We affirm.
1The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.

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Galeas-Pineda's advisory Guidelines range was calculated at 0-6 months, based
upon a final offense level of eight and a criminal history category of I. Galeas-Pineda
had one criminal history point for a marijuana possession charge. He had also been
charged, convicted and fined for nine driving offenses which did not result in criminal
history points. Most of the driving offenses were for driving without a license or
without insurance; Galeas-Pineda had used an alias for some of the driving offenses.
In addition, Galeas-Pineda had two charges for driving without a license pending
against him at the time of sentencing.
Most significantly, Galeas-Pineda was the focus of an investigation by
Immigrations and Customs Enforcement (ICE) stemming from an extended sexual
relationship with a minor female. An ICE agent testified at sentencing about
uncharged conduct which would support a number of charges against Galeas-Pineda,
including numerous counts for sexual abuse of a child, production of child
pornography, possession of marijuana, and contributing to the delinquency of a minor
by providing marijuana and alcohol to the minor child. In addition, Galeas-Pineda had
repeated violations of a no contact order preventing him from contacting the minor
child. He attempted to conceal the evidence of his illegal acts by asking the minor to
destroy documents and hide electronic devices containing sexually explicit
photographs. He asked the minor child to falsely accuse another person of a sex crime
when he suspected the person was "ratting" on him. He tried to thwart the sexual
abuse investigation by planning for the minor child to move to Honduras, and stated
he would re-enter the United States after being deported, boasting that law
enforcement would not be able to catch him because of his familiarity with the border.
Based upon this evidence (as well as additional evidence not recounted here),
the government moved for an upward departure under United States Sentencing
Guidelines Manual (U.S.S.G.) § 4A1.3 and U.S.S.G. § 5K2.0. The district court
granted the motion after finding the government established the uncharged conduct
by a preponderance of the evidence. The district court determined Galeas-Pineda's
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criminal history was underrepresented and there were aggravating circumstances of
a kind or a degree not adequately taken into consideration by the Sentencing
Commission in formulating the Guidelines. The district court stated there were
"many, many factors for a departure upward," stressing Galeas-Pineda's "total and
complete disregard for authority and for the law." The district court specifically found
the defendant's intent to re-enter the United States within a short time after removal
"sets this case apart from run-of-the-mill possession of fraudulent identity documents"
cases.
The district court departed upward to an offense level of nineteen and a criminal
history category of VI, which corresponds with a sentencing range of 63-78 months.
In the alternative, the district court varied upward from the original advisory
Guidelines range based upon the history and characteristics of the defendant, the
seriousness of uncharged conduct not included in the criminal history score, the need
for the sentence to be a deterrence and promote respect for the law, and the safety of
children in the community. The district court then imposed a sentence of seventy-two
months.
Galeas-Pineda contends the district court committed procedural error by
neglecting to state why it departed from criminal history category I to category VI.
In particular, Galeas-Pineda claims he would have only received three additional
criminal history points for his uncharged conduct (and at the most seven), moving his
criminal history category from I to IV. Without necessarily agreeing with Galeas-
Pineda's predictions concerning the number of additional points his uncharged conduct
would have triggered, we nevertheless reject his claim of procedural error because the
district court was not required "to assign hypothetical criminal history points to the
conduct that did not result in convictions, and then determine what the appropriate
criminal history category would be," nor was the district court "required to engage in
a ritualistic exercise in which the sentencing court mechanically discusses each
criminal history category it rejects en route to the category it selects[.]" United States
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v. Azure, 536 F.3d 922, 932 (8th Cir. 2008) (internal quotation marks and citation
omitted). Our review of the record indicates the district court provided "sufficient
indicia of why the intermediary categories [were] inappropriate" in departing "from
the lowest to the highest criminal history category" in this situation. Id.
Even if we accepted the defendant's argument regarding procedural error, we
would conclude the error was harmless and still affirm "based on the district court's
alternative decision to impose an upward variance based on the § 3553(a) factors."
United States v. Johnson, 572 F.3d 449, 455 (8th Cir. 2009). The district court
thoroughly discussed the § 3553(a) factors in supporting its alternate variance, and the
variance is supported by the record in this case.
Finally, we reject Galeas-Pineda's claim regarding the substantive
unreasonableness of his sentence, recognizing the "district court has wide latitude to
weigh the § 3553(a) factors in each case and assign some factors greater weight than
others in determining an appropriate sentence." United States v. Bridges, 569 F.3d
374, 379 (8th Cir. 2009); see also United States v. Feemster, 572 F.3d 455, 464 (8th
Cir. 2009) ("[I]t will be the unusual case when we reverse a district court sentence –
whether within, above, or below the applicable Guidelines range – as substantively
unreasonable.") (quotation marks and citation omitted).
We affirm.
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