IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-40396

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

PEDRO ARTEMIO SAENZ-GONZALEZ,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:18-CR-2035-1

Before STEWART, HIGGINSON, and COSTA, Circuit Judges.

PER CURIAM:*

Pedro Artemio Saenz-Gonzalez appeals the sentence imposed following

his conviction for being found in the United States after previous deportation 

in violation of 18 U.S.C. § 1326(a) and (b). The district court sentenced him to 

16 months of imprisonment. The sentence represented an upward departure 

under U.S.S.G. § 4A1.3 and an upward variance based on the sentencing 

factors under 18 U.S.C. § 3553(a). 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

November 7, 2019

Lyle W. Cayce

Clerk

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No. 19-40396

2

Saenz-Gonzalez argues that the sentence was procedurally unreasonable 

because the district court failed to follow the requisite method of calculating 

the departure; erroneously considered prior arrests; overemphasized an 

unscored prior rape conviction from outside the relevant time frame; and failed

to consider his assistance in prosecuting a human trafficker. Saenz-Gonzalez 

did not object to the specific grounds he raises here. Thus, plain error review 

applies to his arguments. See Puckett v. United States, 556 U.S. 129, 135 

(2009). 

Saenz-Gonzalez’s argument regarding the district court’s method of 

calculating the departure is without merit because the district court’s reasons 

for rejecting intermediate criminal history categories were implicit in its 

explanation for its upward departure. See United States v. Zuniga-Peralta, 

442 F.3d 345, 347-48 & n.2 (5th Cir. 2006). Additionally, the district court was 

not required to mechanically discuss each criminal history category it rejected. 

See United States v. Lambert, 984 F.2d 658, 663 (5th Cir. 1993) (en banc). As 

to the prior arrests, the district court’s consideration of the arrests was 

permissible given that the facts of the conduct leading up to the arrests were 

recited in the presentence report. See United States v. Windless, 719, F.3d 415, 

420 (5th Cir. 2013). Moreover, the arrests were not merely arrests. Citations 

and failure to appear warrants were issued for the offenses. As to the district 

court’s emphasis of the unscored prior rape conviction, § 4A1.3(a)(2)(A) states 

that prior sentences not used in computing the criminal history score may 

provide a basis for an upward departure. Finally, the district court did not fail 

to consider Saenz-Gonzalez’s assistance in prosecuting a human trafficker

because the district specifically mentioned that point at the sentencing 

hearing. 

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No. 19-40396

3

Saenz-Gonzalez also argues that his sentence was substantively 

unreasonable because he has not exhibited a pattern of criminal behavior, a 

pattern of increasingly violent crime, a continued disregard for the law, or an 

unwillingness to change his behavior. Although Saenz-Gonzalez did not object 

to the substantive reasonableness of his sentence below, and review is for plain 

error, see United States v. Peltier, 505 F.3d 389, 390, 392 (5th Cir. 2007), his 

sentence is substantively reasonable under any standard of review. 

The record supports a determination that the district court had an 

adequate basis for the sentence imposed and was guided by the § 3553(a) 

factors in determining that a sentence above the guidelines was justified. The 

district court stated that it had considered the § 3553(a) factors, and, notably, 

Saenz-Gonzalez’s prior history consisted of a prior rape conviction and 

repeated reentries into the United States. Additionally, his sentence, which 

was 10 months above the top of the applicable advisory guidelines range, was 

not so disproportionate as to overcome the factors that warranted its 

imposition. See United States v. Brantley, 537 F.3d 347, 348-50 (5th Cir. 2008).

AFFIRMED.

 Case: 19-40396 Document: 00515190481 Page: 3 Date Filed: 11/07/2019