IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-10036

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

FROILAN JESUS RODRIGUEZ-VIGIL, also known as Jesse Rodriguez, also

known as Jesus Rodriguez-Velasquez,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:09-CR-97-1

Before JOLLY, GARZA, and STEWART, Circuit Judges.

PER CURIAM:

*

Froilan Jesus Rodriguez-Vigil appeals his sentence following his conviction

for illegal reentry into the United States after deportation. Rodriguez-Vigil was

sentenced to 120 months of imprisonment and three years of supervised release.

His sentence constituted an upward departure, pursuant to U.S.S.G. § 4A1.3,

from his guidelines range of 70 to 87 months of imprisonment.

United States Court of Appeals

Fifth Circuit

F I L E D

November 8, 2010

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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After United States v. Booker, 543 U.S. 220 (2005), sentences are reviewed

for “reasonableness.” Gall v. United States, 552 U.S. 38, 46 (2007). This court

first ensures that the district court did not commit any significant procedural

error, such as failing to properly calculate the guidelines range or inadequately

explaining a deviation from the guidelines range. Id. at 51. If the sentencing

decision is procedurally sound, this court then considers “the substantive

reasonableness of the sentence imposed under an abuse-of-discretion standard.”

Id.

Rodriguez-Vigil contends that the district court erred in imposing his

sentence because it failed to follow the requisite method of calculating the extent

of the departure. Under § 4A1.3, a district court may depart upward “[i]f reliable

information indicates that the defendant’s criminal history category

substantially under-represents the seriousness of the defendant’s criminal

history or the likelihood that the defendant will commit other crimes.”

§ 4A1.3(a)(1); accord United States v. Mejia-Huerta, 480 F.3d 713, 723 (5th Cir.

2007). When departing under § 4A1.3, the district court must follow the method

set forth under § 4A1.3(a)(4)(A) and (B) for calculating the extent of the

departure. Mejia-Huerta, 480 F.3d at 723. Those provisions provide that an

upward departure under § 4A1.3 is made by adjusting the defendant’s criminal

history category, except that the defendant’s offense level is adjusted where the

district court seeks to depart upward from a criminal history category of VI.

§ 4A1.3(a)(4)(A), (B). The district court should consider, and state for the record

that it has considered, each intermediate criminal history category before

arriving at the sentence it finds appropriate. United States v. Lambert, 984 F.2d

658, 662 (5th Cir. 1993) (en banc). However, the district court generally is not

required to ritualistically discuss each criminal history category it rejects, and

its reasons for rejecting the intermediate categories may be given implicitly in

its explanation for the departure. Id. at 663.

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Because Rodriguez-Vigil did not alert the district court to his argument

that it failed to comply with the methodology under § 4A1.3(a)(4), the argument

is reviewed for plain error only. See Puckett v. United States, 129 S. Ct. 1423,

1429 (2009). To show plain error, the appellant must show a forfeited error that

is clear or obvious and that affects his substantial rights. Id. 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 reputation of judicial

proceedings. Id. To show that a sentencing error affected his substantial rights,

an appellant must demonstrate a reasonable probability that he would have

received a lesser sentence but for the error. United States v. Davis, 602 F.3d

643, 647 (5th Cir. 2010).

While Rodriguez-Vigil is correct that the district court did not explain how

it arrived at a 120-month imprisonment term based on the methodology required

for an upward departure under § 4A1.3, see Lambert, 984 F.2d at 662-63, he

cannot show a reasonable probability that he would have received a lesser

sentence but for the district court’s lack of explanation. First, § 4A1.3(a)(4)

permitted the district to reach a guidelines range encompassing a 120-month

imprisonment term because it permitted the district court to increase RodriguezVigil’s criminal history category to VI and then increase his total offense level

to 24, 25, or 26. See § 4A1.3(a)(4)(A), (B); U.S.S.G. Ch. 5, Pt. A; United States v.

Ashburn, 38 F.3d 803, 809-10 (5th Cir. 1994) (en banc). Second, there is no

indication that the district court would have been inclined to impose an

imprisonment term of less than 120 months if it had explicitly followed the

methodology required under § 4A1.3(a)(4). To the contrary, the district court’s

statements in imposing the sentence indicated that it thought 120 months “may

be a little low” to constitute an appropriate sentence based on § 4A1.3 and the

factors under 18 U.S.C. § 3553(a). Rodriguez-Vigil has not satisfied his burden

of showing that his substantial rights were affected by the district court’s error

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concerning the methodology required under § 4A1.3(a)(4). See Davis, 602 F.3d

at 647.

Rodriguez-Vigil also challenges the upward departure on the ground that

the district court erroneously believed that each of his four past convictions

constituted a “crime of violence” as that term is used in the Guidelines. At issue

is the district court’s statement, made as it provided reasons for its upward

departure, that Rodriguez-Vigil had “12 criminal history points which were

based on his four prior convictions that are considered crimes of violence.” He

does not dispute that his convictions for aggravated sexual assault of a child and

indecency with a child constituted crimes of violence under the Guidelines but

contends that his two Texas convictions for burglary of a habitation did not

qualify as crimes of violence under the categorical approach set forth in Taylor

v. United States, 495 U.S. 575, 600-02 (1990). Because Rodriguez-Vigil did not

alert the district court to this specific legal argument, plain error review applies

to this issue. See Hernandez-Martinez, 485 F.3d at 272-73.

Rodriguez-Vigil has not shown that his substantial rights were affected by

any error by the district court in characterizing his burglary convictions as

crimes of violence under the Guidelines. See Davis, 602 F.3d at 647. First,

whether his burglary convictions were crimes of violence under the Guidelines

was not a necessary determination for an upward departure under § 4A1.3. See

§ 4A1.3(a). Second, the question whether his burglary convictions fell within the

“generic, contemporary” meaning of the offense of “burglary of a dwelling,” so as

to constitute a crime of violence under the Guidelines, merely turned on the

distinction whether he was convicted under a subsection of § 30.02 of the Texas

Penal Code that required him to possess the specific intent, at the time of his

unlawful entry, to commit a crime or whether he was convicted under a

subsection that merely required that he commit or attempt to commit a crime

after having made the unlawful entry. See United States v. Constante, 544 F.3d

584, 585-87 (5th Cir. 2008); United States v. Herrera-Montes, 490 F.3d 390, 392

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(5th Cir. 2007). He has not shown how that distinction would have had any

significant effect on the district court’s evaluation of the seriousness of his

burglary offenses for purposes of its upward departure under § 4A1.3.

Third, the district court’s statement that the 120-month sentence “may be

a little low” indicates that it was unlikely that the district court would have

imposed a lesser sentence merely because of such a distinction. Because

Rodriguez-Vigil cannot show a reasonable probability that he would have

received a lesser sentence but for any error regarding the characterization of his

burglary offenses as crimes of violence under the Guidelines, he cannot satisfy

his burden under plain error review with respect to this issue. See Davis, 602

F.3d at 647.

Rodriguez-Vigil also contends that the district court erred in concluding

that its upward departure to a 120-month sentence was appropriate. Regarding

the district court’s decision to depart under § 4A1.3, he argues that his criminal

history category did not substantially under-represent the seriousness of his

criminal history or risk of recidivism because he had no pending charges or

consolidated offenses, did not have any criminal conduct that was not assessed

criminal history points, and did not have any convictions for which he had

received a lenient sentence. Regarding the extent of the departure, he contends

that a departure of 33-months above the top of his advisory guidelines range was

not justified by the facts of his case. Because he sufficiently preserved this point

of error, we review for abuse of discretion the district court’s decision to depart

upward and the extent of the departure. See United States v. Zuniga-Peralta,

442 F.3d 345, 347 (5th Cir. 2006). A sentencing court does not abuse its

discretion in deciding to depart upward when its reasons for doing so advance

the objectives set forth in § 3553(a)(2) and are justified by the facts of the case.

Id.

Under § 4A1.3, information that may indicate under-representation of a

defendant’s criminal history or likelihood of recidivism includes “prior

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sentence[s] of substantially more than one year imposed as a result of

independent crimes committed on different occasions.” § 4A1.3(a)(2)(B); accord

United States v. Carter, 953 F.2d 1449, 1460 (5th Cir. 1992). Here, RodriguezVigil’s Texas convictions in 1990 for burglary of a habitation, 1991 for burglary

of a habitation, and 1994 for aggravated sexual assault of a child constituted

three independent convictions that were committed on different occasions for

which he was ultimately sentenced to imprisonment terms of 8 years, 5 years,

and 10 years, respectively. Additionally, he was sentenced to two years of

imprisonment on his 2009 conviction for indecency with a child.

In imposing the upward departure, the district court indicated that

Rodriguez-Vigil had been removed from the United States after having engaged

in “very serious conduct” and that his commission of indecency with a child in

2007 after illegally returning to the United States was part of his continuing

“pattern of violence.” The district court did not abuse its discretion in

determining that an upward departure was appropriate based on his criminal

history score’s under-representation of the seriousness of his past convictions

and the likelihood that he would continue his pattern of criminal activity. See

§ 4A1.3(a)(2)(B); Zuniga-Peralta, 442 F.3d at 347; Carter, 953 F.2d at 1460.

Regarding the extent of the departure, this court has upheld upward

departures of greater magnitudes. See, e.g., United States v. Jones, 444 F.3d

430, 433, 442 (5th Cir. 2006) (upholding 120-month sentence where maximum

of guidelines range was 57 months); United States v. Smith, 417 F.3d 483, 492

(5th Cir. 2005) (upholding 120-month sentence where maximum of guidelines

range was 41 months); United States v. Daughenbaugh, 49 F.3d 171, 174 (5th

Cir. 1995) (upholding 240-month sentence where maximum of guidelines range

was 71 months). “That the Court of Appeals ‘might reasonably have concluded

that a different sentence was appropriate’ is an insufficient justification for

reversal of the district court, because the sentencing judge is in a superior

position to evaluate the § 3553(a) factors . . . .” United States v. Armstrong, 550

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F.3d 382, 405 (5th Cir. 2008) (quoting Gall, 552 U.S. at 51), cert. denied, 130 S.

Ct. 54 (2009). The district court indicated that the 120-month sentence was

sufficient to account for the § 3553(a) factors and the reasons underlying its

decision to depart, and the district court provided individualized, case-specific

reasons for imposing the sentence. Rodriguez-Vigil has not shown that the

district court abused its discretion in imposing an upward departure to a 120-

month sentence. See Zuniga-Peralta, 442 F.3d at 347.

AFFIRMED.

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