1

The Honorable Charles B. Kornmann, United States District Judge for the

District of South Dakota.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

________________

No. 04-2412

________________

United States of America,

Appellee,

v.

Hector Diego Paz, Jr.,

Appellant.

*

*

*

*

*

*

*

*

*

Appeal from the United States

District Court for the

District of South Dakota.

________________

Submitted: February 16, 2005

 Filed: June 14, 2005 

________________

Before MORRIS SHEPPARD ARNOLD, BOWMAN, and GRUENDER, Circuit

Judges.

________________

GRUENDER, Circuit Judge.

Hector Diego Paz, Jr. appeals his sentence after pleading guilty to sexual abuse

of a minor within Indian country in violation of 18 U.S.C. §§ 1153 and 2243(a). Paz

argues that the district court1

 made findings of facts to impose a sentence in violation

of Blakely v. Washington, 124 S. Ct. 2531 (2004). He also argues that the district

court’s written order of judgment and commitment does not meet the specificity
-2-

requirement of 18 U.S.C. § 3553(c)(2). We affirm the sentence imposed by the

district court.

I. BACKGROUND

Around August 2003, Hector Diego Paz, Jr. moved into his parents’ home on

the Cheyenne River Sioux Tribe Reservation in LaPlant, South Dakota. Within

weeks of his arrival in LaPlant, Paz began an intimate relationship with a 13-year-old

female neighbor. On two separate occasions, he engaged in illegal sexual conduct

with the 13-year-old female. About the same time, Paz also engaged in illegal sexual

conduct with another 13-year-old female. The encounter with the second victim led

to Paz’s arrest by the Cheyenne River Sioux Tribal Law Enforcement Services. Paz

was 20 years old at the time of the illegal sexual conduct.

Paz was subsequently indicted on multiple counts of sexual abuse of a minor

within Indian country in violation of 18 U.S.C. §§ 1153 and 2243(a). In the

Statement of Factual Basis filed at the time of his guilty plea to one count, Paz

admitted to the least egregious incident of illegal sexual conduct with his first victim.

Prior to sentencing, the United States Probation Office prepared a presentence

investigation report (“PSR”). The PSR contained facts relating to other instances of

illegal sexual conduct with the two victims and to Paz’s substantial criminal history.

Though Paz initially objected to the PSR’s recitation of the other instances of illegal

sexual conduct, his objection was withdrawn at sentencing. Also prior to sentencing,

Paz sent letters to the district court and to his two victims and their families

apologizing for his illegal conduct.

Relying on the now-undisputed facts in the PSR, the letters sent by Paz prior

to sentencing and other admissions made by Paz, the district court calculated a

guidelines offense level of 22 based on Paz’s pattern of prohibited sexual conduct.

See U.S. Sentencing Guidelines Manual § 4B1.5(b)(1) (2002). The district court’s
2

Specifically, Paz does not challenge the district court’s decision to depart

upward based on his substantial criminal history, see infra n.4, nor its application of

the § 4B1.5(b)(1) enhancement based on its finding that Paz engaged in a pattern of

prohibited sexual conduct.

-3-

finding of a pattern of prohibited sexual conduct effectively represented a seven-level

sentencing guidelines enhancement for Paz. In addition, the district court departed

upward by increasing Paz’s criminal history category from III to IV pursuant to

U.S.S.G. § 4A1.3 because it found that a criminal history category of III seriously

under-represented the seriousness of Paz’s criminal history and the likelihood he

would commit other crimes. The district court then granted Paz a three-level

reduction for acceptance of responsibility. U.S.S.G. § 3E1.1. Based on a total

offense level of 19, a criminal history category of IV, and a sentencing range of 46

to 57 months, the district court sentenced Paz to 57 months’ imprisonment.

Paz filed a timely notice of appeal. He argues for the first time on appeal that

the district court violated the rule announced in Blakely when it imposed a sentence

based on facts not admitted by Paz as part of his guilty plea. Specifically, Paz claims

that the Sixth Amendment prohibited the district court from increasing his sentence

by finding that he had committed two other acts of illegal sexual conduct and by

relying on his substantial criminal history because these were facts not admitted to

as part of his guilty plea. Paz also claims that the district court’s written order of

judgment and commitment did not state with the requisite specificity the reasons for

the upward departure.

II. DISCUSSION

A. Sentencing

Paz does not challenge on appeal the district court’s interpretation or

application of the federal sentencing guidelines.2

 See United States v. Mashek, 406
3

For example, in his letter to the district court, Paz wrote, “I should have known

better not to have sex with underage girls.”

-4-

F.3d 1012, 1016-17 (8th Cir. 2005) (reviewing a sentence is a two-step process that

begins with an analysis of the application of the guidelines). Instead, he argues that

the district court violated the rule announced in Blakely when it imposed a sentence

based on facts not contained in his guilty plea. 

As an initial matter, we do not believe that the district court imposed an

unconstitutional sentence. Relying on facts admitted by a defendant does not violate

the Sixth Amendment. United States v. Booker, 125 S. Ct. 738, 756 (2005) (“Any

fact (other than a prior conviction) which is necessary to support a sentence

exceeding the maximum authorized by the facts established by a plea of guilty or a

jury verdict must be admitted by the defendant or proved to a jury beyond a

reasonable doubt.”). Facts presented in a PSR are deemed admitted unless the

defendant objects to those facts. United States v. Yahnke, 395 F.3d 823, 825 n.2 (8th

Cir. 2005) (“[The defendant] admit[ted] the violations occurred, both by not objecting

to the [PSR] and in his brief to this court.”). Finally, the fact of a prior conviction is

a sentencing factor for a court to consider when imposing a sentence,

Almendarez-Torres v. United States, 523 U.S. 224, 243 (1998), and, therefore,

excepted from the Sixth Amendment’s general prohibition against judicial factfinding. See Booker, 125 S. Ct. at 756. 

In this case, the facts relied on by the district court as the grounds for the §

4B1.5(b)(1) enhancement were either admitted by Paz in letters sent prior to

sentencing3

 or deemed admitted when Paz withdrew his objection to the PSR’s

recitation of the facts relating to the other instances of illegal sexual conduct. The §

4A1.3(a) upward departure was based on uncontested prior convictions and

unobjected-to facts relating to those convictions which were also in the PSR.
-5-

Although the district court did not find facts in violation of the Sixth

Amendment, Paz still could argue that the district court improperly applied the

guidelines in a mandatory fashion. See United States v. Pirani, 406 F.3d 543, 551

(8th Cir. 2005); United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005).

At his sentencing, however, Paz did not object to his sentence on the basis of

“Apprendi or Blakely error or [argue] that the Guidelines were unconstitutional.”

Pirani, 406 F.3d at 549 (quoting United States v. Antonakopoulos, 399 F.3d 68, 76

(1st Cir. 2005)). Because Paz failed to preserve for appellate review any challenge

to the guidelines, we apply the plain-error test set forth in United States v. Olano, 507

U.S. 725, 732-36 (1993). Pirani, 406 F.3d 549-50. The test has been stated as

follows:

before an appellate court can correct an error not raised at trial, there

must be (1) error, (2) that is plain, and (3) that affects substantial rights.

If all three conditions are met, an appellate court may then exercise its

discretion to notice a forfeited error, but only if (4) the error seriously

affects the fairness, integrity, or public reputation of judicial

proceedings.

Id. at 550 (quoting Johnson v. United States, 520 U.S. 461, 466-67 (1997)).

As in Pirani, the first two factors are satisfied because the district court erred

in applying the guidelines in a mandatory fashion, and that error is plain at the time

of appellate review. See Pirani, 406 F.3d at 550. To satisfy the third Olano factor,

Paz must prove by a preponderance of the evidence that there exists “a reasonable

probability that he would have received a more favorable sentence with the Booker

error eliminated by making the Guidelines advisory.” Id. at 551.

Paz cannot demonstrate that there exists a reasonable probability that the

district court would have imposed a more favorable sentence under an advisory

guidelines system. First, the district court, in its discretion, chose to depart upward
4

Though at sentencing he objected to the district court’s decision to depart

upward pursuant to § 4A1.3(a), Paz abandoned this argument on appeal. Instead, Paz

argues that “[t]he district court departed above the statutory maximum sentence as set

forth by the Federal Sentencing Guidelines without complying with [18 U.S.C. §

3553(c)(2)] and based upon a judicial finding of fact.” At most, Paz makes fleeting

references to what he argues are the district court’s ambiguous and potentially

erroneous reasons for the departure. However, he makes these references in the

context of the adequacy of the district court’s written order and not as a challenge to

the district court’s decision to depart. See Fed. R. App. P. 28(a); see also Hays v.

-6-

because Paz’s criminal history category substantially under-represented the

seriousness of his criminal history and the likelihood he would commit other crimes.

See United States v. Sayre, 400 F.3d 599, 601 (8th Cir. 2005) (recognizing the futility

of remanding a sentence for the application of advisory guidelines where the district

court had previously departed upward). Second, not only did the district court depart

from a guidelines range of 37 to 46 months to a range of 46 to 57 months, but it also

sentenced Paz to the highest sentence available in that range, 57 months.

We conclude, therefore, that Paz cannot prove by a preponderance of the

evidence that the district court’s error affected a substantial right. Because Paz

cannot demonstrate that there exists a reasonable probability that he would receive

a more favorable sentence under an advisory guidelines system, we need not proceed

to the fourth factor of the plain-error test, “whether to exercise our discretion to

review a plain error because it ‘seriously affects the fairness, integrity, or public

reputation of judicial proceedings.’” Pirani, 406 F.3d at 553 (quoting Johnson, 520

U.S. at 467). Consequently, Paz’s sentence does not warrant remand under Booker.

B. Written Order of Judgment and Commitment

Finally, we turn to the issue of whether the district court adequately stated in

the written order of judgment and commitment the reasons for the § 4A1.3 upward

departure leading to Paz’s particular sentence.4

 When a district court departs outside
Hoffman, 325 F.3d 982, 986 n.2 (8th Cir. 2003) (affirming the portion of the district

court’s judgment not raised in the appellant’s Statement of the Issues or argued in the

brief); United States v. Gonzales, 90 F.3d 1363, 1369-70 (8th Cir. 1996) (refusing to

consider issues that are deemed abandoned on appeal).

-7-

the recommended range of the guidelines, it must state in open court and in the

written order of judgment and commitment the reasons for that particular sentence.

18 U.S.C. § 3553(c)(2). The purpose of § 3553(c)(2) is to inform the parties of the

reasons for a particular sentence outside of the guidelines range, to aid the reviewing

court in determining the appropriateness of any guidelines departure or § 3553(a)

variance, and to assist the Sentencing Commission in collecting sentencing data and

in maintaining a comprehensive database on all federal sentences. See United States

v. White Face, 383 F.3d 733, 739 & n.5 (8th Cir. 2004).

In deciding that a § 4A1.3(a) upward departure was appropriate to better

account for Paz’s substantial criminal history and the likelihood of recidivism, the

district court discussed in open court the litany of offenses Paz committed as a

juvenile. See U.S.S.G. § 4A1.3(a)(2)(A). The district court also discussed Paz’s

persistent history of incorrigible and noncompliant behavior, such as a strong

propensity to disregard conditions of probation and his numerous attempts to evade

and flee from law enforcement. The district court then stated in the written order of

judgment and commitment that it departed from the recommended guideline range

because:

The Court found reliable information existed to indicate that the

defendant’s criminal history category did not adequately reflect the

seriousness of his past criminal conduct or the likelihood that he will

commit other crimes. The Court also found the defendant’s criminal

history is significantly more serious than that of most defendants in the

same criminal history category.
-8-

While the district court might have stated its reasons for the upward departure with

a higher degree of specificity in writing, the above statement adequately informs the

parties, the Court and the Sentencing Commission of its reasons. Regardless, any

potential prejudice to the parties was nullified when the district court stated with great

specificity in open court the reasons for its decision to depart upward. We conclude,

therefore, that the district court’s written statement does not constitute reversible

error.

III. CONCLUSION

Paz cannot demonstrate that his sentence imposed under a mandatory

guidelines system constitutes plain error warranting remand under Booker. Further,

the district court’s written order of judgment and commitment stated with sufficient

specificity the reasons for Paz’s particular sentence. Accordingly, Paz’s sentence is

affirmed.

______________________________