IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-11197

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ROGELIO TREJO-MUNOZ,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 7:11-CR-5-1

Before SMITH, PRADO, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Rogelio Trejo-Munoz (“Trejo-Munoz”) appeals the

84-month sentence imposed following his guilty plea conviction for illegal reentry

following deportation, in violation of 8 U.S.C. § 1326(a). He contends that the

district court’s upward departure from the advisory Guidelines range of 24 to 30

months imprisonment was procedurally and substantively unreasonable. 

The Guidelines authorize an upward departure “[i]f reliable information

indicates that the defendant’s criminal history category substantially

United States Court of Appeals

Fifth Circuit

F I L E D

January 3, 2013

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.

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No. 11-11197

under-represents the seriousness of the defendant’s criminal history or the

likelihood that the defendant will commit other crimes.” U.S.S.G. § 4A1.3(a)(1).

An upward departure predicated on § 4A1.3 may be warranted if (1) prior

sentences were not used in computing the criminal history category, (2) prior

sentences of substantially more than one year were imposed as a result of

independent crimes committed on different occasions, (3) prior similar

misconduct was established by a failure to comply with an administrative order,

(4) at the time of his arrest, the defendant was facing trial or sentencing on

another charge, or (5) the defendant committed prior similar adult criminal

conduct which did not result in a criminal conviction. §4A1.3(a)(2)(A)–(E). 

In this case, the district court ruled that an upward departure was

warranted in part because Trejo-Munoz (1) did not receive any criminal history

points for 10 other guilty plea convictions, including one illegal entry conviction

and five driving while intoxicated (“DWI”) convictions, (2) was facing pending

charges in Oklahoma, and (3) reentered the United States after deportation on

five times. In light of that information, the district court concluded that TrejoMunoz’s criminal history category substantially underrepresented the serious

of his criminal history. After considering the 18 U.S.C. § 3553(a) factors, the

district court sentenced Trejo-Munoz to 84 months imprisonment, reasoning that

the sentence was sufficient, but not greater than necessary, to counteract TrejoMunoz’s “profound disrespect for the rule of law,” protect the public, and deter

him from committing crimes in the future.

1. Procedural Reasonableness

According to Trejo-Munoz, the district court committed procedural error

by “elid[ing] past” intermediate offense levels and Guidelines ranges before

deciding on the sentence imposed, in violation of Guidelines § 4A1.3(a)(4)(B) and

United States v. Lambert, 984 F.2d 658, 662-63 (5th Cir. 1993) (en banc)

(explaining that when a district court intends to depart above criminal history

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category VI, it should consider each intermediate criminal history category and

explain why the category chosen and sentence imposed is appropriate). 

The district court stated on the record that it considered each intermediate

criminal history category before deciding upon the sentence, noting that it

“moved incrementally down the criminal history table.” The court also explained

on the record that it found an upward departure warranted and the intermediate

categories and levels insufficient because of Trejo-Munoz’s continuing criminal

activity, much of which was unscored, as well as his disregard of criminal laws

and immigration procedures. Lambert does not require more. See id. at 663 (“We

do not, however, require the district court to go through a ritualistic exercise in

which it mechanically discusses each criminal history category it rejects en route

to the category that it selects. Ordinarily the district court’s reasons for rejecting

intermediate categories will clearly be implicit, if not explicit, in the court’s

explanation for its departure from the category calculated under the guidelines

and its explanation for the category it has chosen as appropriate.”); see also

United States v. Ashburn, 38 F.3d 803, 809 (5th Cir. 1994) (en banc) (affirming

significant departure where only implicit consideration was given to each

intermediate criminal history category). Moreover, had there been procedural

error, it would have been harmless because the district court stated that it would

have imposed the sentence based on the § 3553(a) factors alone. See United

States v. Mejia-Huerta, 480 F.3d 713, 723 (5th Cir. 2007) (holding that because

the district court’s decision to impose a non-Guidelines sentence was based in

part on its consideration of the § 3553(a) factors, any error in its application of

§ 4A1.3 was harmless).

2. Substantive Reasonableness

Trejo-Munoz argues that his 84-month sentence is substantively

unreasonable because he presents a low risk of recidivism and shows “great

promise.” The district court concluded, and we agree, that Trejo-Munoz’s

extensive criminal history, including eleven convictions for driving while

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No. 11-11197

intoxicated and numerous other convictions for evading arrest and illegal

reentry, portended more recidivism, not “great promise.” See United States v.

Delgado-Nunez, 295 F.3d 494, 498 (5th Cir. 2002) (holding that “it was certainly

not unreasonable for the court to conclude” that the exclusion of three DWI

convictions from the criminal history calculation resulted in a criminal history

level that underestimated of the seriousness of the defendant’s past criminal

conduct). The court carefully considered the § 3553(a) factors in imposing the

sentence, and we decline the invitation to re-weigh them now. Gall v. United

States, 552 U.S. 38, 50 (2007). Moreover, the 84-month sentence, while above

the Guidelines range, is well below the statutory maximum and within the range

of variances and departures this court has upheld as substantively reasonable.

See, e.g., United States v. Smith, 417 F.3d 483, 492 (5th Cir. 2005) (upholding

sentence of 120 months where high end of Guidelines range was 41 months);

United States v. Daughenbaugh, 49 F.3d 171, 174-75 (5th Cir. 1995) (upholding

sentence of 240 months where high end of Guidelines range was 71 months);

United States v. Rosogie, 21 F.3d 632, 633-34 (5th Cir.1994) (upholding sentence

of 150 months where high end of Guidelines range was 37 months). 

For all of those reasons, we AFFIRM.

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