United States Court of Appeals

For the Eighth Circuit

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No. 20-1762

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United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Ulises Alvarado

lllllllllllllllllllllDefendant - Appellant

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Appeal from United States District Court 

for the Northern District of Iowa - Western

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 Submitted: March 15, 2021

Filed: June 25, 2021

 [Unpublished]

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Before SHEPHERD, ERICKSON, and KOBES, Circuit Judges. 

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PER CURIAM. 

Ulises Alvarado pleaded guilty to failure to register as a sex offender, 18

U.S.C. § 2250(a), and was sentenced to 15 months in prison. He argues the district
court1

 abused its discretion in departing upward based on under-representation of his

criminal history. We affirm.

I.

Alvarado had to register as a sex offender after two 1998 convictions for

unlawful sexual conduct. After he was arrested for failing to register in Iowa, he

pleaded guilty to one count, and a Presentence Investigation Report was prepared. 

While Alvarado had a lengthy criminal history, many convictions were too remote to

be counted. The U.S. Probation Office assessed him a criminal history category I and

a total offense level of 10, yielding a sentencing range of 6 to 12 months in prison. 

The Government moved to depart upward under U.S.S.G. § 4A1.3(a) because

the sentencing range under-represented the seriousness of Alvarado’s criminal history

and his likelihood of reoffending. The Government asked for a criminal history VI,

which would have resulted in a sentence between 24 and 30 months. Alvarado

resisted and urged the district court to weigh mitigating factors like his parents’

divorce, his early exposure to alcohol, and the threat of the COVID-19 pandemic in

prison.

The district court granted the Government’s motion, but departed only to a

criminal history category III and a sentencing range of 10 to 16 months. The court

imposed a sentence of 15 months with 5 years of supervised release, reasoning that

Alvarado’s criminal history, even if remote, was serious and recent enough to show

that he continued to be a danger to the public and was likely to reoffend. The court

also weighed aggravating and mitigating factors under 18 U.S.C. § 3553(a). 

1The Honorable Leonard T. Strand, Chief Judge, United States District Court

for the Northern District of Iowa. 

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Alvarado appeals, arguing that the district court abused its discretion in

departing upwards. He also suggests the district court did not adequately explain its

decision or appropriately weigh Alvarado’s youth and the COVID-19 pandemic as

mitigating factors.

II.

We review a district court’s decision to depart from the Guidelines for abuse

of discretion. United States v. Vasquez, 552 F.3d 734, 738 (8th Cir. 2009). An

upward departure from the criminal history category is permissible if “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.” U.S.S.G. § 4A1.3(a)(1). District courts

may consider “dated offenses . . . for purposes of an upward departure

under § 4A1.3(a)(2)(A).” United States v. Cooke, 853 F.3d 464, 473 (8th Cir. 2017).

A sentence within the advisory Guidelines range is presumptively reasonable. United

States v. Jones, 639 F.3d 484, 488 (8th Cir. 2011) (“[T]he range following an upward

departure under Guidelines § 4A1.3 for under-represented criminal history is the . . .

advisory Guidelines range. And [it] enjoys the presumption of reasonableness.”)

(citation omitted).

The district court did not abuse its discretion in departing upward under

§ 4A1.3(a) and sentencing Alvarado to 15 months in prison. The court “considered

the parties’ arguments and ha[d] a reasoned basis for exercising [its] own legal

decisionmaking authority.” Rita v. United States, 551 U.S. 338, 356 (2007). It

carefully considered Alvarado’s “lengthy and disturbing” criminal record— 

especially his 2019 threat to kill hospital workers while he was intoxicated and

“evading or resisting or otherwise being aggressive with regard to law

enforcement”—and found the underlying behavior posed a danger to the public and

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indicated a likelihood of recidivism. D. Ct. Dkt. 50 at 29–30. It engaged in a full

discussion of the § 3553(a) factors and acknowledged the adverse impact of

Alvarado’s parents’ divorce and his early exposure to alcohol on his mental health. 

The district court also considered the pandemic and declined to hold a generalized

threat to health justified a lower sentence. Alvarado’s arguments in favor of these

mitigating factors do not rebut the presumption of reasonableness. We find no error

in the district court’s consideration of Alvarado’s criminal history or mitigating

factors, or in its explanation of its decision. 

III.

The judgment of the district court is affirmed. 

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