IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-10836

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

LUIS BELTRAN-CERVANTES,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:11-CR-45-1

Before WIENER, GARZA, and CLEMENT, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Luis Beltran-Cervantes appeals the 24-month

sentence imposed following his guilty plea conviction for illegal reentry following

removal in violation of 8 U.S.C. § 1326(a). He contends that the district court

procedurally erred in upwardly departing from the advisory guidelines range of

6-12 months in prison and that the sentence is substantively unreasonable.

We review the district court’s interpretation or application of the

Guidelines de novo and its factual findings for clear error. See United States v.

United States Court of Appeals

Fifth Circuit

F I L E D

April 12, 2012

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. 11-10836

Gutierrez-Hernandez, 581 F.3d 251, 254 (5th Cir. 2009). Additionally, we review

upward departures for reasonableness, which necessitates that we review “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).

Initially, we reject Beltran-Cervantes’s argument that the district court

misapplied the upward departure Guideline, U.S.S.G. § 4A1.3, because it stated

that his criminal history category merely “underrepresented” his risk of

recidivism instead of stating that it “substantially underrepresented” his risk of

recidivism as required by § 4A1.3(a)(1). There is no indication in the record that

the district court misunderstood the proper standard for an upward departure

under § 4A1.3 or that its statement was not merely a shorthand reference to that

standard.

Beltran-Cervantes has not shown that the district court’s decision to

impose an above-guidelines sentence under § 4A1.3(a)(1) was procedurally or

substantively unreasonable. After considering Beltran-Cervantes’s mitigating

argument of cultural assimilation, the sentencing court cited case-specific

reasons for the upward departure, including his history of assaultive conduct,

the lack of deterrent effect from his prior lenient treatment and sentences, and

his prior uncharged offense of attempted illegal reentry into the United States. 

See § 4A1.3(a)(1), (2)(E) & comment. (backg’d); Zuniga-Peralta, 442 F.3d at 347.

As Beltran-Cervantes insists, for the first time on appeal, that the district

court could not consider his association with a gang as a basis for an upward

departure under § 4A1.3, we review that contention for plain error. To establish

plain error, a defendant must show a forfeited error that is clear or obvious and

that affects his substantial rights. Puckett v. United States, 556 U.S. 129, 135

(2009). If he makes such a showing, we have the discretion to correct the error

but only if it seriously affects the fairness, integrity, or public reputation of

judicial proceedings. Id.

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The list of categories of information regarding conduct that “may” support

a departure under § 4A1.3(a)(2) is nonexclusive, see United States v. CantuDominguez, 898 F.2d 968, 970 (5th Cir. 1990), and Beltran-Cervantes points to

no precedent prohibiting the district court from considering his association with

a gang when imposing an upward departure. Accordingly, he has not shown

error that is clear or obvious. See United States v. Valles, 484 F.3d 745, 759 (5th

Cir. 2007). Moreover, Beltran-Cervantes conceded to the district court that (1)

he was affiliated with a gang when he was a juvenile, (2) he did not expressly

deny the presentence report’s statement that he associated with members of a

different gang since becoming an adult, and (3) he has not shown that any of the

other varied bases for the district court’s upward departure were improper. 

Thus, even assuming any error, he has not shown that it affected his substantial

rights. See United States v. Jones, 444 F.3d 430, 438 (5th Cir. 2006).

Given the district court’s reasons for the departure, Beltran-Cervantes has

failed to show that the 24-month sentence constituted an abuse of discretion. 

See Zuniga-Peralta, 442 F.3d at 347. In fact, we have upheld upward departures

of greater magnitude than the departure in this case. See, e.g., Jones, 444 F.3d

at 433, 442; United States v. Smith, 417 F.3d 483, 492 (5th Cir. 2005); United

States v. Daughenbaugh, 49 F.3d 171, 174 (5th Cir. 1995). Beltran-Cervantes’s

sentence is AFFIRMED.

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