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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-40414

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

ISMAEL VALADEZ-SALINAS, also known as Juan Valadez-Carmona,

also known as Jose Luis Rangel-Hernandez

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:07-CR-1247-ALL

Before JONES, Chief Judge, and DENNIS and HAYNES, Circuit Judges.

PER CURIAM:*

Ismael Valadez-Salinas appeals his 30-month sentence for being found

illegally in the United States following previous deportation in violation of

8 U.S.C. § 1326. He argues that the district court erred in basing a four-level

upward departure, in part, upon his October 2007 arrest for possession of 159

pounds of marijuana (2007 possession arrest).

United States Court of Appeals

Fifth Circuit

F I L E D

April 16, 2009

Charles R. Fulbruge III

Clerk
No. 08-40414

2

An appellate court’s review of a sentence must start with the issue

whether the district court committed any “significant procedural error, such as

failing to calculate (or improperly calculating) the Guidelines range, treating the

Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors,

selecting a sentence based on clearly erroneous facts, or failing to adequately

explain the chosen sentence.” Gall v. United States, 128 S. Ct. 586, 597 (2007).

If the sentencing decision is procedurally sound, the appellate court then

considers “the substantive reasonableness of the sentence imposed under an

abuse-of-discretion standard.” United States v. Cisneros-Gutierrez, 517 F.3d 751,

764 (5th Cir. 2008).

This court recognizes three types of sentences: (1) a sentence within the

guidelines range, (2) an upward departure or downward departure provided for

by the Guidelines, and (3) a non-guidelines sentence, or variance, that is outside

the guidelines range. United States v. Smith, 440 F.3d 704, 706-07 (5th Cir.

2006). In the instant case, the district court specifically noted that it was

imposing an upward departure pursuant to U.S.S.G. § 5K2.0(a)(3). The instant

case thus involves a departure pursuant to the Guidelines.

Reasonableness review, in the context of a guidelines departure, requires

this court 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). However, when, as here, a defendant fails to object to the

reasonableness of the sentence imposed in the district court, review is for plain

error. See United States v. Rodriguez-Rodriguez, 530 F.3d 381, 387-88 (5th Cir.

2008). To show plain error, the appellant must show an error that is clear or

obvious and that affects his substantial rights. United States v. Baker, 538 F.3d

324, 332 (5th Cir. 2008), cert. denied, 2009 WL 56591 (Jan. 12, 2000) (No. 08-

7559). If the appellant makes such a showing, this court has the discretion to

correct the error but only if it seriously affects the fairness, integrity, or public
No. 08-40414

3

reputation of judicial proceedings. Id. When the district court imposes a

guidelines sentence, including a sentence with a departure pursuant to the

Guidelines, this court infers that the district court has considered all the factors

necessary under the Guidelines for a fair sentence and will rarely say that such

a sentence is unreasonable. United States v. Rajwani, 476 F.3d 243, 249 (5th

Cir.), modified on other grounds, 479 F.3d 904 (5th Cir. 2007). 

A district court incorrectly applies the Guidelines by basing a departure

upon a factor that the Sentencing Commission has expressly rejected as an

appropriate ground for departure. Williams v. United States, 503 U.S. 193, 200

(1992). Section 4A1.3(a)(3), p.s., provides that a “prior arrest record itself shall

not be considered for purposes of an upward departure.” In United States v.

Jones, 444 F.3d 430, 434-36 (5th Cir. 2006), this court held that it was plain

error for a district court to take the “mere fact of prior arrests into account” at

sentencing absent findings by the court, supported by reliable information, that

the crimes underlying the arrests had actually been committed by the defendant.

“Arrests, standing alone, do not constitute [such] reliable information.” Id. at

434. 

Even assuming that the district court plainly erred by basing the upward

departure, in part, on the 2007 possession arrest, reversal is not warranted. In

Jones, 444 F.3d at 438, this court held that when a district court plainly errs by

basing a departure upon a prior arrest, reversal is not warranted if “the record

as a whole does not indicate that it is reasonably probable [the defendant] would

have received a lesser sentence” if the district court had not so erred. Although

the district court mentioned Valadez’s 2007 possession arrest more than once

during sentencing, it emphasized that its consideration of an upward departure

was based “mainly”on Valadez’s 2006 Texas conviction for possessing 100 pounds

of marijuana (2006 possession conviction). Indeed, in announcing the imposition

of the upward departure, the district court explicitly based it upon the 2006

possession conviction and made no mention of the 2007 possession arrest. The
No. 08-40414

4

record as a whole thus does not indicate that it is reasonably probable that

Valadez would have received a lower sentence but for the district court’s

consideration of the 2007 possession arrest. See Jones, 444 F.3d at 438.

Valadez also argues that the upward departure was excessive. Section

5K2.0(a)(3) provides that an upward departure is appropriate if a case presents

a circumstance “taken into consideration in determining the guidelines range,

if the court determines that such circumstance is present in the offense to a

degree substantially in excess of, or substantially below, that which ordinarily

is involved in that kind of offense.” The district court determined that the

presentence report did not adequately reflect the seriousness of Valadez’s 2006

possession conviction. Given that Valadez admittedly possessed 100 pounds of

marijuana, he fails to show that the district plainly erred by concluding that he

intended to distribute the marijuana and that the 2006 possession conviction

effectively constituted a drug trafficking offense under § 2L1.2. See § 2L1.2

comment. (n. 1(B)(iv)) (possession with intent to distribute among drug

trafficking offenses); cf. United States v. Kates, 174 F.3d 580, 582 (5th Cir. 1999)

(“Intent to distribute may be inferred from the possession of a quantity of drugs

too large to be used by the defendant alone.”) (21 U.S.C. § 841 drug possession

case). Further, given that drug trafficking offenses qualify for, at minimum, a

12-level increase in offense level, see § 2L1.2(b)(1)(A) and (B), Valadez fails to

show that the district court plainly erred in imposing the more modest increase

at issue. See Rodriguez-Rodriguez, 530 F.3d at 387-88.

Valadez also contends that the district court erred by failing to adequately

explain how the § 3553(a) factors justify his sentence. The district court stated

that it had considered the § 3553(a) factors and specifically mentioned the need

to avoid unwarranted disparity between Valadez and other similarly situated

defendants with prior drug trafficking convictions. The district court was not

required to engage in “robotic incantations that each statutory factor has been

considered.” United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006) (internal
No. 08-40414

5

quotation marks and citation omitted). Further, because Valadez’s sentence is

a guidelines sentence, this court infers that the district court has considered all

the factors necessary under the Guidelines. See Rajwani, 476 F.3d at 249.

Valadez fails to show that the district court plainly erred by failing to sufficiently

articulate its application of the § 3553(a) factors. See Rodriguez-Rodriguez,

530 F.3d at 387-88.

Although Valadez does not indicate what he believes would have been an

appropriate guidelines range, had the district court not upwardly departed four

levels, Valadez’s guidelines range would have been 15-21 months of

imprisonment rather than the 24-30 month range under which he was

sentenced. The extent of the variance is less than other sentences that this court

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

(applying plain error review and affirming a sentence that was 253% higher

than the top of the guidelines range); United States v. Smith, 440 F.3d 704, 708

n.5, 709-10 (5th Cir. 2006) (upholding departure from guidelines range

maximum of 27 months to 60 months); Jones, 444 F.3d at 433 (upholding

departure from guidelines range maximum of 57 months to statutory maximum

of 120 months); United States v. Smith, 417 F.3d 483, 492 (5th Cir. 2005)

(upholding departure from guidelines range maximum of 41 months to 120

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

(upholding departure from maximum of 71 months to 240 months).

AFFIRMED.