United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 11-1527

___________

*

United States of America, *

*

Plaintiff - Appellee, *

* Appeal from the United States

v. * District Court for the

* District of South Dakota. 

Andres Morales-Escarsega, also *

known as Andres Morales-Escarcega, * [UNPUBLISHED]

*

Defendant - Appellant. *

___________

Submitted: November 14, 2011

Filed: December 14, 2011

___________

Before WOLLMAN, MURPHY, and BENTON, Circuit Judges. 

___________

PER CURIAM.

Andres Morales-Escarsega, an illegal alien, pled guilty to illegally reentering

the country after removal in violation of 8 U.S.C. § 1326(a), (b). After considering

the presentence investigation report (PSR) which recommended a guideline range of

15 to 21 months, the district court1

 determined that the PSR had underrepresented

appellant’s criminal history and that there was a likelihood that he would reoffend. 

It departed upward from the advisory guideline range to sentence him to 24 months. 

1

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

District of South Dakota.
Morales-Escarsega appeals, challenging the upward departure and arguing that his

sentence was substantively unreasonable. We affirm.

In August, 2010, while Morales-Escarsega was on supervised release for a 2008

conviction for illegal reentry after deportation, he was arrested in South Dakota and

charged with third degree rape in state court. He pled no contest to misdemeanor

sexual contact without consent. He was subsequently indicted and pled guilty to a

new charge of illegal reentry after deportation. 

Appellant’s PSR calculated his criminal history to be category IV, based on his

prior felony convictions for using fraudulent documents and illegal reentry after

removal, his South Dakota misdemeanor sex offense, and the fact that he had been on

supervised release when he was arrested. Appellant's criminal history category and

his total offense level of 10 resulted in an advisory guideline range of 15 to 21

months. An immigration and customs enforcement investigation revealed that

Morales-Escarsega had on two other previous occasions illegally reentered the

country; each time he had been removed without being charged. 

In light of his uncharged conduct, the district court determined that the PSR 

substantially underrepresented appellant’s criminal history and the likelihood that he

would reoffend. If Morales-Escarsega had been convicted of the two uncharged

illegal reentries, he likely would have had a category VI criminal history with an

advisory guideline range of 24 to 30 months. See U.S.S.G. § 4A1.1(b). The district

court departed upward to a criminal history category of VI and sentenced MoralesEscarsega to 24 months. 

Morales-Escarsega appeals, contending that the district court abused its

discretion in departing upward to raise his criminal history category from IV to VI. 

He argues that his two uncharged illegal reentries are not of sufficient magnitude to

-2-
warrant an upward departure. He also challenges the substantive reasonableness of

his sentence.

A district court’s decision to depart upward from the advisory guideline range

is reviewed for abuse of discretion. United States v. King, 627 F.3d 321, 323 (8th Cir.

2010). U.S.S.G. § 4A1.3(a) permits “reliable information” concerning “[p]rior similar

adult criminal conduct not resulting in a criminal conviction” to be considered in

determining whether a defendant’s criminal history category underrepresents the

seriousness of his history or the likelihood that he will commit other crimes. To this

end, a court may take into account “prior illegal reentries that were not prosecuted.” 

United States v. Mejia-Perez, 635 F.3d 351, 353 (8th Cir. 2011). 

The district court did not err in finding that the PSR underrepresented

appellant’s criminal history or abuse its discretion by departing upward to apply a

criminal history category of VI to Morales-Escarsega. The court emphasized that 

Morales-Escarsega had entered the United States illegally at least six times, taking

into account his two uncharged illegal reentries. These additional instances of

criminal behavior, involving the exact same offense as the present case, suggest a

strong likelihood of recidivism. See id. (upholding use of prior illegal reentries as

"evidence of obvious incorrigibility"). 

We review the substantive reasonableness of appellant’s sentence for abuse of

discretion. United States v. Fiorito, 640 F.3d 338, 352 (8th Cir. 2011). “An abuse of

discretion occurs if a sentencing court fails to consider a relevant factor that should

have received significant weight, gives significant weight to an improper or irrelevant

factor, or considers only appropriate factors but nevertheless commits a clear error of

judgment by arriving at a sentence that lies outside the limited range of choice dictated

by the facts of the case.” Id. (internal quotations and citation omitted). “[I]t will be

the unusual case when we reverse a district court sentence—whether within, above,

-3-
or below the applicable Guidelines range—as substantively unreasonable.” United

States v. Feemster, 572 F.3d 455, 464 (8th Cir. 2009) (en banc) (citation omitted). 

Morales-Escarsega argues that the district court gave significant weight to an

improper factor by “narrowly concentrat[ing] on punishment and deterrence” because

he had already been punished for his previous crimes. This argument contradicts a

key aspect of the sentencing guidelines in that a defendant earns criminal history

points for past offenses. See U.S.S.G. § 4A1.1. The district court acted within its

discretion when it determined that a criminal history category of VI was more

appropriate given appellant’s uncharged crimes. Had he been convicted of the

uncharged offenses, those convictions likely would have added 4 points to his

criminal history and moved him up two categories. We conclude that appellant's

sentence was substantively reasonable.

The judgment of the district court is affirmed.

______________________________

-4-