IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-10605

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

MANUEL RAMIREZ-CORDOBA,

Defendant - Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:12-CR-205-1

Before JONES, BARKSDALE, and HAYNES, Circuit Judges.

PER CURIAM:*

Manuel Ramirez-Cordoba challenges the sentence imposed as a result of 

his guilty-plea conviction of illegal reentry following deportation, in violation 

of 8 U.S.C. § 1326 (reentry of removed illegal aliens). Pursuant to Sentencing 

Guideline § 4A1.3, the district court departed upwardly from the 15 to 21-

month advisory Guidelines sentencing range and imposed a 30-month

sentence, after finding Ramirez’ criminal-history category did not adequately 

* 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

May 22, 2014

Lyle W. Cayce

Clerk

 

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No. 13-10605

address his past criminal conduct. Ramirez contends the court erred 

procedurally in departing upwardly. 

Although post-Booker, the Sentencing Guidelines are advisory only, and 

a properly preserved objection to an ultimate sentence is reviewed for 

reasonableness under an abuse-of-discretion standard, the district court must 

still properly calculate the Guidelines-sentencing range for use in deciding on 

the sentence to impose. Gall v. United States, 552 U.S. 38, 51 (2007). In that 

respect, for issues preserved in district court, its application of the Guidelines 

is reviewed de novo; its factual findings, only for clear error. E.g., United States 

v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). “[W]e review upward 

departures for reasonableness”, requiring this court to evaluate both the 

“decision to depart upwardly and the extent of that departure for [an] abuse of 

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

(citation and internal quotation marks omitted). “An upward departure . . . is 

not an abuse of discretion if the court’s reasons for departing 1) advance the 

objectives set forth in 18 U.S.C. § 3553(a)(2) and 2) are justified by the facts of 

the case”. Id. (citation and internal quotation marks omitted). 

Ramirez asserts departure is not warranted when application of the 

advisory Guidelines results in convictions not being factored in the 

determination of his criminal-history category. The district court did not rely 

exclusively on Ramirez’ uncounted convictions or sentences; rather it also 

considered Ramirez’ repeated illegal returns and his use of 14 aliases. 

Nonetheless, uncounted sentences are a proper basis for a § 4A1.3 upward 

departure. See U.S.S.G. § 4A1.3(a).

Although Ramirez concedes he has several prior convictions, he contends 

his criminal-history category of IV does not substantially under-represent the 

seriousness of his past criminal conduct. He asserts the § 4A1.3 departure 

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provision is meant for cases involving more serious criminal histories than his, 

and so, an upward departure cannot be imposed unless he is an “exceptional 

case” under Guideline § 5K2.0(a)(3). The inadequacy of a defendant’s criminalhistory category, however, “is a factor not taken into account by the Guidelines 

and is a permissible justification for upward departure”. United States v. 

Laury, 985 F.2d 1293, 1310 (5th Cir. 1993) (citation and internal quotation

marks omitted). Moreover, an upward departure under § 4A1.3 may be 

justified by “a long criminal history of nonviolent crimes”. United States v. 

Roach, 1994 WL 83366, at *2 (5th Cir. 21 Feb. 1994) (unpublished). As a result, 

Ramirez’ claims regarding the seriousness of his criminal history and the 

§ 5K2.0(a)(3) “exceptional case” requirement fail. 

Regarding the extent of the departure, the 30-month sentence 

constituted a nine-month increase above the original high end of the 15 to 21-

month advisory sentencing range, which is well within the range of departures 

our court has upheld. See, e.g., United States v. Jones, 444 F.3d 430, 433, 442–

43 (5th Cir. 2006) (affirming departure from 46–57 month range to 120 

months); Zuniga-Peralta, 442 F.3d at 346–48 (affirming departure from 27–33 

month range to 60 months).

The district court’s reasoning advances “the objectives set forth in 18 

U.S.C. § 3553(a)(2) and . . . [is] justified by the facts of the case”; therefore, it 

did not abuse its discretion either in departing upwardly pursuant to § 4A1.3 

or in the extent of its departure. See Zuniga-Peralta, 442 F.3d at 347. 

(Accordingly, we need not consider Ramirez’ claims concerning the alternative

36-month upward-variance sentence. See United States v. Bonilla, 524 F.3d 

647, 656–59 (5th Cir. 2008).) 

AFFIRMED.

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