IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-20121

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

JOSE ANTONIO CERDA-MENDEZ,

Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:17-CR-599-1

Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges. 

PER CURIAM:*

Jose Antonio Cerda-Mendez appeals the sentence imposed following his 

guilty plea conviction for illegal reentry, in violation of 8 U.S.C. § 1326(a), 

(b)(1). Cerda’s advisory Sentencing Guidelines range of imprisonment was 24 

to 30 months. The district court departed upwardly pursuant to Guideline

§ 4A1.3 and imposed, inter alia, 60-months’ imprisonment. 

 

* 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

January 4, 2019

Lyle W. Cayce

Clerk

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No. 18-20121

2

Cerda contends: the court procedurally erred by failing to explain 

adequately its decision to deviate 30 months above the advisory Guidelines 

sentencing range; and, his sentence was substantively unreasonable as too 

much emphasis was placed on his prior unprosecuted deportations and 

removals from the United States.

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

district court must avoid significant procedural error, such as improperly 

calculating the Guidelines sentencing range. Gall v. United States, 552 U.S. 

38, 48–51 (2007). If no such procedural error exists, a properly preserved 

objection to an ultimate sentence is reviewed for substantive reasonableness 

under an abuse-of-discretion standard. Id. at 51; United States v. DelgadoMartinez, 564 F.3d 750, 751–53 (5th Cir. 2009). Reasonableness review, in the 

context of a departure, requires us to evaluate both “the district court’s decision 

to depart upwardly and the extent of that departure for abuse of discretion”. 

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

quotation marks and citation omitted). 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). 

For the claimed procedural error, the court’s statements both at 

sentencing and in the statement of reasons were sufficient to support the 

departure. The court adopted the presentence investigation report, which 

stated an upward departure might be appropriate under Guideline § 4A1.3 

based on underrepresentation of Cerda’s criminal history; and, the court 

explained it was departing upward based on Cerda’s “egregious criminal 

history”: his seven prior convictions for driving while intoxicated and his five 

prior unprosecuted deportations and removals. 

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While the court did not explicitly consider on the record each 

intermediate offense level, see United States v. Lambert, 984 F.2d 658, 662–63 

(5th Cir. 1993) (en banc), it is clear from its explanation for the departure that 

it determined both the extent and nature of Cerda’s criminal history, including

his five prior unprosecuted deportations and voluntary removals not resulting

in criminal convictions, warranted no less than an increase to 60 months’ 

imprisonment. See United States v. Ashburn, 38 F.3d 803, 809–10 (5th Cir. 

1994) (en banc); United States v. Davila-Martinez, 464 F. App’x 247, 249–50 

(5th Cir. 2012) (approving upward departure to 60 months’ imprisonment 

based, in part, on prior illegal reentries for which defendant was not 

prosecuted). Nor was the size of the departure so drastic as to require an 

“explanation in careful detail” of the reasons why lesser offense levels were 

inadequate. See Ashburn, 38 F.3d at 809–10 (internal quotation marks and 

citation omitted).

Regarding the claimed substantive unreasonableness, given Cerda’s 

lengthy criminal history, including his multiple unscored deportations and 

removals, his challenge to the departure is unavailing. See U.S.S.G. 

§ 4A1.3(a)(1); Zuniga-Peralta, 442 F.3d at 347–48. Accounting for the full 

nature and extent of Cerda’s criminal history advances the objectives provided 

in 18 U.S.C. § 3553(a)(2), particularly affording adequate deterrence and 

protecting the public; and the departure is justified by the facts. See 18 U.S.C. 

§ 3553(a)(2)(B), (C); Zuniga-Peralta, 442 F.3d at 347–48. Moreover, the extent 

of the departure was well-within the range of departures our court has upheld. 

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

upward departure or variance to 180 months where the top of the Guidelines 

sentencing range was 51 months); Zuniga-Peralta, 442 F.3d at 346–48 

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(affirming upward departure to 60 months from the 27 to 33 months’

Guidelines sentencing range).

AFFIRMED.

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