## IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________



### m 99-21147

_______________



### U NITED 

### S TATES OF 

### A MERICA



### ,

Plaintiff-Appellee,

VERSUS



### J UAN 

### H IJINIO 

### G UTIERREZ



### ,

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 rel ied on permissible factors for

departure, made a reasonable determination that

the factors removed the case from the heartland of

the applicable guide line, and did not abuse its

di scretion in the degree of the upward departure, we affirm.

I.

Gutierrez pleade d guilty to count 1 of an indictment charging him with being a felon in posses sion of a firearm in violation of 18 U.S.C.

§§ 922(g)(1) and 924 (a)(2). 1 The probation

officer determined that Guti errez had an

offense level of 16 and a cri minal history

* Pursuant to 5 TH C IR

. R. 47.5, the Court has

determined that th is opinion should not be published

and is not precedent except under the limited

circumstances set forth in 5 TH C IR . 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 wer e 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. G utierrez admitted that three of the

guns belonged to him.2

category of VI, based on a total criminal

history score of 14. His guidelineimpri so nment range was 46-57 months; the

statutory maximum was ten years.

The probation offi cer noted that Gutierrez’s

criminal history score did not refl ect the seriousness of his prior criminal conduct and recommended an upward departure. Although

Gutierrez did not file written objections to the

presentence report (“PSR”), the question

whether an upward departu re was warranted

was argued at t he sentencing hearing. The

court overruled Gutierrez’s object i on, adopted

the findings and conc lusio ns 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 t h e Guidelines;

(2) whether the departure factors, as

supported by eviden ce in the record,

remove the ca se 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.) (f

ootnote om i tted), c ert. denied

, 120 S. Ct. 172 (1999).

In determining whether the factors relied on

are permissible, we co nsider whether “the

departure factor is forbidden, encouraged, discouraged, or unmentioned by the Guidelines.”

Id. (discussing Koon

, 518 U.S. at 92-96). “If

the departure fac t or is not forbidden, the district court may presum ably depart on that

factor although the appropriate circumstances

will vary depending on whether the factor is

encouraged, discouraged, or u n mentioned.”

Id. at 375.

If a factor is encouraged, courts can depart o nly “if the applicable Guideline

does n ot already

take it into account.”

If the factor is discouraged, or

enco uraged but already taken into

account by the applicable guid eline,

courts can depart “only i f the factor is

present to an ex ceptional degree or in

some other way makes the case different

from the ordinary case where the factor

i s present.” If the f actor i s

unmentioned, “the court must, after

considering the structure and theory of

both relevant individual guidel ines and

the Guideline s taken as a whole[,]

decide whether the factor is sufficient to

take the case out of the Guidel i ne’s

heartland.”

Id. (quoting Koon

, 518 U.S. at 94-96)

(internal quotati on marks and brackets

omitted).

So, whether a g i ven factor is

permissible depends on how the factor is

classified. An impermissible factor is a

forbidden factor, a discouraged fac t or

not present to an exceptional degree, or

an encouraged factor already considered

by the Guidelines and not present to an

excep t io nal degree. All other factors

cannot be precluded catego r ically as a

possible basis for departure.

Id. (citing Koon , 518 U.S. at 94-96) (internal

citation omitted).3

We do not defer to the district court’s legal

determinations, such as whether a factor is a

permissible basis for departure. I d. (citing

Koon , 518 U.S. at 100). Factual

det erminations, however, are entitled to

“substantial deference.” I d. (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 wit hin its special

competence. Accordingly, it is t he

near-exclusive province of the district court to

decide whether a particular factor, or set of

factors, removes a cas e 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 o n

bond when some of this took place, 2 together w it h, most importantly, his

crimi nal history, he is before the Court

with at least four prior felony

convictions, as identified in Part F of the

report, numerous addit i onal 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 p resent

case, he was arrested in Harri s County

on new felony charge s

. To my mind,

this behavior demonstrates a total

disr egard for the law and illustrates a

propensity a [sic] recidivism.

An upward departure under

Guideline 4A1.3 is going to be ordered.

In determining t he 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 poi nt out

the information in Section 4A1.3 in the

guidelines specifically discusses

departures from Category 6. We would

object to the upward departu r e. 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 Court 

### SS I a m

sure Your Honor already has looked at

this 

### SS these 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 sto len 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 16.4

Counsel also obje cted that the di stri ct court

had failed to articulate reasons for departing

three offense levels, as opposed to one or two.

The probation officer observed that Gutierrez’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 mari huana. Gutierrez’s related crimes

involved fleeing or attempting to elude police

officers, criminal mischief, and carrying

firearms.

The district co u rt concluded that the

reasons for its upward departure had been

adequately stated and t hat if they were not,

additional reasons mentioned by the probation

officer and the prosecutor provided “reasons

enc o mpassed in the Court’s decision to

upward depart three levels.”

III.

Our review of the sentencing begins with a

determinat io n 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 m otor vehicle.

Gutierrez attempted to e lude 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 tri ed t o choke him. The officer

suffered a bad knee inju r y and cuts and

abrasions. T h e second uncounted misdemeanor

conviction was for possession of marihuana related to Gutierrez’s 1996 felony conviction for

unauthorized use of a m

otor vehicle. A baggie

o f marihuana was found in his pocket at t h e

time of arrest. 4

Guti e rrez argues that these misdemeanor

convictions were impermissible factors. He

contends that although it is permissible to consider u ncounted convictions that are not

factually related to counted offenses, but were

consolidated for sentencing, it is impermissible

to consider uncounted convic t ions that are

factually related to the offe nses 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

imper missible bases of departure. In fact, it

treats all rel at ed convictions the same,

r egardless 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 o f points [to related convictions]

may not adequately reflect the se riousness of

the defendant’s criminal history or the

frequency w it h which he has committed

crimes.” U.S.S.G. § 4A1.2, comment 3. The

district court th e refore did not err in

considering Gut ierrez’s uncounted

misdemeanors.

4 A gun was also found in the purse of Gutierrez’s female passenger. The passengers told authorities that the gun belonged to Gutierrez and that

G utierrez had forced her to put the gun in her

purse.5 B.

Gutierrez asserts that the consideration of

his arrest while o n bond in this case was an

impermissible fact or, because it was a factor

tha t 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 responsibilit y based on this

subsequent arrest while on bond. He was

arrested three days after his guilty plea in this

case on c harges of possession of stolen

property ; h e contends that, under the K oon

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 deni al of a

downward adjustment for acceptance of

responsibility with the init ial 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

determ ining the offense level. Thus, a court

may use the sam

e 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

p oints in determining his offense level. A

court could, h o wever, 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 co nst itute erroneous doublecounting of the same factor, but is simply use

of the factor to decide whether to depart up or

down.

Gutierrez argues, alternatively, that his arrest while on bond is an impermi ssible factor

because although § 4A1.3 provides that the

sentencin g court may consider “all relevant

information” in deciding whether to depart, it

a lso 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 invo lvin

g an upward departure in

which the only reason given for the departure

w as the defendant’s prior arrest record. We

reasoned:

[T]he district court sta t ed specifically

t hat it did not find that Cantu-Domin

guez had committed the various offenses

f o r 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 t ype of

“reliable in fo rmation” that justifies a

departure from the applicable senten c ing

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 tha t Gut ierrez was guilty of possession

of stolen pro pert y. This is more than a mere

arrest record and therefore may be considered

in deciding to depart upward. 5 Further, a

5 See Unit ed States v. Ashburn , 38 F.3d 803,

807-08 (5th Cir. 1994) (en banc) (stating that under § 1B1.4, the court could “consi der, without

limitation, any information concerning the

background, character and conduct of the6

court, in departing upward, may consider the

likelihood of recidivism. 6

C.

Gutierrez similarly argues that pending and

dismissed charges are forbidden 

### SS or at best

highly infrequent 

### SS

bases for depa rture. Gutierrez had four prior dismissed charges. The

first 

### SS for burglary of a m

otor vehicle 

### SS

was

dismissed at the time of the guilty plea for unauthorized use of a

mo t o r vehicle in 1991.

The second 

### SS

for fleeing or attempting to elude

a police officer 

### SS

was dismissed in 1991,

because Gutierrez ha d been convicted in a

related case. The other two dismissed charges 

### SS for criminal mischief and for ca rrying a

weapon 

### SS

were dismissed for unspecified reasons in 1997. The district court stated that it

had considered these pending and dismissed

charges in deciding to depart upward.

Our analysis of the permissibilit y of

considering these dismissed charges tracks our

analysis of the use of Gutierrez’s arrest while

o n bond in considering an upward departure.

Here also, a co urt must rely on more than a

mere arrest record; there must be evidence that

the defendant committed th e 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 reliabilit y t han does a mere arrest

record. Thus, in A shburn we held that the

c ourt had properly considered prior crimi nal

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 consi der “prior similar adult

cr iminal 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 suff i cient other factors

upon which the court could base its decision. 7

D.

Guti errez contends that it was

impermissible to depart upward because he

had only fo urt een criminal history

points 

### SS only one more than the minimum

needed to be categorized in crimin al history

category VI. He cites no port ion of the

guidelines and no cases to support thi s

contention, however. The guidelines say

departure is appropriate when a criminal’s

offense level does not adequat e ly reflect his

dangerousness or likelihood of recidivism. We

therefore reject Gutierrez’s circular argument

that a court cannot raise a criminal ’s offense defenda nt, unless otherwise prohibited by law”)

(citation omitted).

6 See U.S.S.G. § 4A1.3; United States v. Connely

, 156 F.3d 978, 984 (9th Cir.) (reasoning that

upward departure under § 4A1.3 is “justified

purely on the basis of defendant’s l ikelihood of

recidivism” and whether hi s likelihood of

recidivism is under -r epresented by his criminal

h i story category), cert. denied

, 525 U.S. 1128

(1998). 7 S e e 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.”)7

level to group him with defendants exhibit ing

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 t o 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 heartlan d, it is acting within its

special competence. A court may depart

upward “[i]f reliable information indicates that

the criminal history category doe s not

adequately reflect the seriousness of the

defendant’s past criminal conduct or the likelihoo d t hat the defendant will commit other

crimes[.]” U.S.S.G. § 4A1.3, p.s.; s ee 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 th e defendant

was inclined to re t urn t o a similar course of

behavior. ” In U

nited 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 tha t t he convictions

demonstrated the defendant’s “manifo ld

disrespect for the law and our judicial system.” Id. at 520. 8

U nder our standard of substantial

deference, we conclude that the district court

d id not err in deciding that these factors

removed Gutierrez’s case from the heartland

of the applicable guideline. The uncounted

misdemeanor charges were particularly t elling

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 supports 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 strongl y 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 support for the departure. The fact that Gutierrez had earlier been charged with burgl ary of

a m otor 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 t he district court

relied on permissible factors and did not err in

deciding that these f

actors rem oved 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 defendant’s long history of crime, which included

several prior convictions that were not included in

his crim i nal history calculation, “demonstrated a

disrespect for the law not adequately reflected by a

category VI criminal history”).8

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 c o nclude that the

departure was reasonable.

B y t he time Gutierrez reached age 27, he

had four f

elo ny convictions, each of which

involved attem

pts to elude police and/or resist

arrest. These facts, when considered with the

related but uncount ed misdemeanor

convictions, the dis m issed charges showing a

history of theft and attem pts to elude police,

and the probability that Gutierrez returned to

crime immediately aft er pleading guilty, are

more than sufficient under t he “substantial

deference” standard to support the decision to

depart upward three le vels. S ee Threadgill

, 172 F.3d at 375.

VI.

G utierrez contends that the court erre d in

increasing th e offense level from 16 to 19

without stating adequate reasons why the int ermediate offense levels of 17 and 18 wer e

not adequate. This argument goes to the reasonableness of the departure. S ee Threadgill

, 172 F.3d at 374.

When making an upward departure, a court

should consider each in t ermediate criminal

history category or offense level and explain

why it is inadequate and why the s entence

im p osed was appropriate. 9 The policy

statement provides:

Where the court determines that the ext ent and nature of the defendant’s criminal history, taken together, are

sufficient to warr a nt an upward

departure f rom

Criminal History

Category VI, the court should structure

the departure by moving incremen t ally

down the sentenci ng table to the next

higher offense level in Criminal History

Cate g ory VI until it finds a guideline

range appropriate to the case.

§ 4A1.3, p.s.; see also § 3553(c)(2).

Although a court should indic a te the

reasons for i

t s upward departure, it is not

required

to go through a ritualistic exercise in

which it mechanically di s cusses each

criminal history category [or offense level] it rejects en route to the category [or

offense level] that it selects. Ordinarily

the district court’s reasons for rejecting

intermedia t e categories [or offense

levels] will clearly be implicit

, if not

explicit, in the court’s explanation for its

de parture from the category [or level]

calculated unde r the guidelines and its

explanation for the category [or level] it

has chosen as appropriate.

Lambert

, 984 F.2d at 663; see also Daughenbaugh , 49 F.3d at 175.

The district court did follow § 4A1.3 in

moving incrementally down the guideline sentencing grid. Although it might have better

e xplained its reasons for rejecting th e

intermediate offense levels, it is evident that it

rejected those levels and rejecte d t hem 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 co uld have been more explicitly9

AFFIRMED.

tied to the incremental character of criminal history

dep artures, we are satisfied that the appellate

record presents a basis up on which we may

reasonably conclude t h at the district court

thoroughly conside

r ed the appropriate guidelines in

arriving at its ultimate sentence.).