IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-11095

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

SERGIO DOMINGUEZ-RODRIGUEZ

Defendant-Appellant

Appeal from the United States United States District Court

for the Northern District of Texas

(6:09-CR-31-1)

Before KING, GARWOOD, and DAVIS, Circuit Judges.

PER CURIAM:

*

Sergio Dominguez-Rodriguez pleaded guilty to illegal reentry after

deportation. Dominguez-Rodriguez’s presentencing report (PSR) assigned a base

level of eight, which was increased by eight levels pursuant to U.S.S.G. § 2L1.2

based on a prior aggravated felony conviction for five counts of lewd assault acts

against a child. After a three-level deduction for acceptance of responsibility,

Dominguez-Rodriguez's total offense level was 13. This offense level, combined

United States Court of Appeals

Fifth Circuit

F I L E D

November 2, 2010

Lyle W. Cayce

Clerk

 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.

Case: 09-11095 Document: 00511282153 Page: 1 Date Filed: 11/02/2010
No. 09-11095

with a Category I criminal history score, resulted in an advisory Guidelines

range of 12-18 months of imprisonment.

Both parties adopted the PSR, but the Government requested that the

district court consider increasing the defendant’s base offense level by sixteen,

rather than eight, levels based on his 1997 guilty-plea conviction for five counts

of lewd assault acts against a child in violation of Florida Statute section

800.04. Dominguez-Rodriguez had been sentenced to only three months and

1

twelve days’ imprisonment for that crime, and therefore the 1997 conviction was

not assessed any criminal history points because it occurred outside the

applicable time period for criminal history calculation purposes. This prior

conviction, however, was used to increase Dominguez-Rodriguez's base offense

level by eight levels pursuant to U.S.S.G. § 2L1.2(b)(1)(C) because the prior

conviction was an aggravated felony for which Dominguez-Rodriguez was

previously deported. The Government argued that Dominguez-Rodriguez's prior

This statute has been amended since the defendant’s offense– once in 1999 and again 1

in 2000. The statute, as it was in effect at the time of defendant’s offense, read: 

“A person who:

(1) Handles, fondles, or assaults any child under the age of 16 years in a lewd,

lascivious, or indecent manner;

(2) Commits actual or simulated sexual intercourse, deviate sexual intercourse,

sexual bestiality, masturbation, sadomasochistic abuse, actual lewd exhibition

of the genitals, or any act or conduct which simulates that sexual battery is

being or will be committed upon any child under the age of 16 years or forces or

entices the child to commit any such act; 

(3) Commits an act defined as sexual battery under s. 794.011(1)(h) upon any

child under the age of 16 years; or 

(4) Knowingly commits any lewd or lascivious act in the presence of any child

under the age of 16 years, 

without committing the crime of sexual battery, commits a felony of the second

degree, punishable as provided in s. 775.082, s. 775.083, or s.775.084. Neither

the victim's lack of chastity nor the victim's consent is a defense to the crime

proscribed by this section. A mother's breastfeeding of her baby does not under

any circumstance violate this section.” 

2

Case: 09-11095 Document: 00511282153 Page: 2 Date Filed: 11/02/2010
No. 09-11095

conviction constituted “sexual abuse of a minor” making it a crime of violence

that should result in the increase of Dominguez-Rodriguez's base offense level

by sixteen levels. This would result in an advisory Guidelines sentencing range

of thirty-seven to forty-six, rather than twelve to eighteen, months of

imprisonment.

At Dominguez-Rodriguez’s November 2009 sentencing hearing, after

considering the facts of the instant conviction, the facts of DominguezRodriguez’s 1997 conviction, the PSR, and the 18 U.S.C. § 3553(a) factors, the

district court did not change the PSR's computations but determined that an

upward variance was warranted. The district court then sentenced

Dominguez-Rodriguez to forty-eight months of imprisonment and three years of

supervised release. Dominguez-Rodriguez objected at the sentencing hearing to

the procedural and substantive nature of his sentence, and filed timely notice of

appeal. Because Dominguez-Rodriguez objected to the reasonableness of the

sentence at sentencing, his claims are reviewed under the abuse-of-discretion

standard. United States v. Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir. 2006).

This court "‘first ensure[s] that the district court committed no significant

procedural error' and ‘then consider[s] the substantive reasonableness of the

sentence imposed.'" United States v. Herrera-Garduno, 519 F.3d 526, 529 (5th

Cir. 2008) (quoting Gall v. United States, 128 S.Ct. 586, 597 (2007)). DominguezRodriguez, represented by counsel, has on appeal only challenged the

substantive reasonableness of his sentence, arguing that the sentence is greater

than necessary to satisfy the sentencing goals of section 3553(a).

Under the advisory regime following United States v. Booker, 543 U.S. 220

(2005), courts have three sentencing options: (1) imposing a sentence within the

properly calculated Guidelines range; (2) imposing a sentence that includes an

upward or downward departure as authorized by the Guidelines; or (3) imposing

3

Case: 09-11095 Document: 00511282153 Page: 3 Date Filed: 11/02/2010
No. 09-11095

a non-Guidelines sentence or “variance” that is either higher or lower than the

Guidelines range. United States v. Smith, 440 F.3d 704, 706 (5th Cir. 2006).

Here, the district court stated that Dominguez-Rodriguez's sentence was

an upward variance, or a non-Guidelines sentence. A sentence that varied from

the Guidelines is "unreasonable if it (1) does not account for a factor that should

have received significant weight, (2) gives significant weight to an irrelevant or

improper factor, or (3) represents a clear error of judgment in balancing the

sentencing factors." United States v. Peltier, 505 F.3d 389, 392 (5th Cir. 2007)

(internal quotation marks and citation omitted). With respect to a variance, this

court may "take the degree of variance into account and consider the extent of

a deviation from the Guidelines," Gall,128 S.Ct. at 595, but "must give due

deference to the district court's decision that the § 3553(a) factors, on a whole,

justify the extent of the variance." Id. at 597.

The variance in this case, of thirty months above the top of the Guidelines

sentencing range, is significant, but this court has upheld variances similar to

and greater than the increase to Dominguez-Rodriguez’s sentence. See, e.g.,

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

held that a mathematical calculation of percentage deviation from the

Guidelines alone does not dictate the reasonableness or not of a sentence.

United States v. Key, 599 F.3d 469, 476 n.1 (5th Cir. 2010). Therefore, we turn

to the question of whether “the justification is sufficiently compelling to support

the degree of the variance.” Gall, 128 S.Ct. at 597.

The district court was very clear that its justification for the variance was

the defendant’s criminal history and his character as, in the judgment of the

district court, “a child molester.” Dominguez-Rodriguez contends that the

district court placed too much reliance on these factors in its section 3553(a)

analysis, particularly since his conviction was twelve years old, while not

properly taking into account other factors such as his wife’s illness, his history

4

Case: 09-11095 Document: 00511282153 Page: 4 Date Filed: 11/02/2010
No. 09-11095

of steady employment, and his lack of criminal convictions since the 1997

offense.

A sentencing court may take into account a broad spectrum of behavior,

including not only a defendant’s prior convictions but also past criminal behavior

for which convictions did not result. Nichols v. United States, 114 S.Ct. 1921,

1928 (1994). In this case, the district court took into account the defendant’s

guilty plea for lewd and lascivious assault against a child, as well as the broader

facts of that crime, which indicated that the defendant sexually assaulted his

step-daughter over a three-year period, beginning when she was nine years old.

2

The district court’s sentence, while a non-Guidelines sentence, derives

strong support from the policy considerations of the Guidelines. The court did

not actually amend the PSR, or the calculation of the advisory guideline range,

to reflect the Government’s contention that Dominguez-Rodriguez’s prior crime

should be considered “sexual abuse of a minor” and thereby a crime of violence,

although the court could have done so consistent with other courts considering

the identical provision of the Florida Statute. See, e.g. United States v.

Londono-Quintero, 289 F.3d 147 (1st Cir. 2002) (finding violation of section

800.04 to be “sexual abuse of a minor” as that term was used in the version of

U.S.S.G. § 2L1.2 in place at that time). Nevertheless, the 48-month sentence the

 The PSR described Dominguez-Rodriguez’s prior offense as follows: 2

“According to a Miami-Dade Police Department ... report, the defendant is the

victim’s stepfather and resided with the victim, age 12. The victim stated that

from 1987, when she was 9 years old, until February 1990, she was sexually

molested by the defendant. The victim advised that the defendant would fondle

her buttocks, breasts, and vaginal area, outside and inside her clothing. The

defendant also exposed his penis to the victim and asked the victim to touch it.

The victim advised that the sexual assault would occur inside of the residence

when they were alone together. The victim also stated ... that on two or three

occasions, the defendant penetrated her vagina with his finger. On March 28,

1990, the victim was examined at the rape treatment center. Physical evidence

was discovered that corroborated the victim’s story. The victim stated that the

sexual assault would occur once or twice per week.”

5

Case: 09-11095 Document: 00511282153 Page: 5 Date Filed: 11/02/2010
No. 09-11095

district court imposed via variance is nearly identical to the top of the Guidelines

range where the prior crime is a crime of violence. See U.S.S.G. § 2L1.2(b)(1)(A)

and note 1(B)(iii) (crime of violence includes “sexual abuse of a minor”). It is

clear that the district court based its sentencing upon an assessment that the

severity of the prior crime, whether or not it precisely fit the contours of the

“crime of violence” language in the Guidelines, warranted a sentence of the

magnitude imposed by the Guidelines for a crime of violence. Because of the

close correspondence between Dominguez-Rodriguez’s prior crime of sexual

assault against his 9-year-old stepdaughter and the Guidelines’ inclusion of

“sexual abuse against a minor” as a crime of violence, such an assessment is well

within the discretion afforded to the district court in sentencing. Furthermore,

it was within the district court’s discretion to weigh the defendant’s criminal

history and character more heavily than the mitigating circumstances raised by

defense counsel at the sentencing hearing.

For the foregoing reasons, the judgment of the district court is affirmed.

AFFIRMED

6

Case: 09-11095 Document: 00511282153 Page: 6 Date Filed: 11/02/2010