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 indictment charging him with being a felon in possession 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determined that this opinion should not be published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 gunsin Gutierrez’s vehicle

and residence. Gutierrez admitted that three of the

guns belonged to him.
2

category of VI, based on a total criminal

history score of 14. His guidelineimprisonment range was 46-57 months; the

statutory maximum was ten years.

The probationofficer noted that Gutierrez’s

criminal history score did not reflect 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 departure was warranted

was argued at the sentencing hearing. The

court overruledGutierrez’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 undertheGuidelines;

(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 factorsrelied on

are permissible, we consider whether “the

departure factor isforbidden, encouraged, discouraged, 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 depart 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 waymakesthe 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 issufficient 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

anencouraged factor alreadyconsidered

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).
3

We do not defer to the district court’slegal

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,2together with, most importantly, his

criminal history, he is before the Court

with at least four prior felony

convictions, asidentified 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 isthe 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

departuresfrom 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.
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 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 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,

additionalreasons 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

misdemeanorsthat 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

convictionwasfor possession ofmarihuana related 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

contendsthat although it is permissible to consider uncounted convictions that are not

factually related to counted offenses, but were

consolidated forsentencing, it isimpermissible

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 Gutierrez’s female passenger. The passengers told authoritiesthat the gun belonged toGutierrez and that

Gutierrez had forced her to put the gun in her

purse.
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 alreadyconsidered bythe 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 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 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 (5thCir. 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-Dominguez 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 fromthe 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

likelythat Gutierrez had committed the offense

for which he was arrested while on bond, and

evenGutierrez’s attorney agreed that it looked

likely that Gutierrez was guilty of possession

of stolen property. 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 under § 1B1.4, the court could “consider, without

limitation, any information concerning the

background, character and conduct of the
6

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. Gutierrez had four prior dismissed charges. The

firstSSfor burglary of a motor vehicleSSwas

dismissed at the time of the guilty plea for unauthorized use of a motor vehicle in 1991.

The secondSSforfleeing or attempting to elude

a police officerSSwas dismissed in 1991,

because Gutierrez had been convicted in a

related case. The other two dismissed chargesSSfor criminal mischief and for carrying a

weaponSSwere 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 permissibility of

considering these dismissed chargestracks 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 basesfor

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 ofrecidivism. 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. Connely, 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 reasonssuffice

to justify the departure.”)
7

level to group him with defendants exhibiting

more serious criminal conduct because raising

his offense levelwould group the criminalwith

those who exhibit more serious criminal

conduct. 

IV.

Having determined that the factorsrelied 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 indicatesthat

the criminal history category does not

adequately reflect the seriousness of the

defendant’s past criminal conduct or the likelihood 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 judicialsystem.”

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 supportsthe 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 support for the departure. The fact that Gutierrez 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 defendant’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”).
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 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 intermediate offense levels of 17 and 18 were

not adequate. This argument goes to the reasonableness of the departure. See Threadgill,

172 F.3d at 374. 

Whenmaking 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 extent 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

criminalhistorycategory[or offense level] 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 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

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
9

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 appropriateguidelinesin

arriving at its ultimate sentence.).