United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 02-1923

___________

United States of America, *

*

 Appellee, *

*

v. * Appeal from the United States

* District Court for the

Osvaldo Villalobos-Cuellar, also * Northern District of Iowa.

known as Osvaldo Cuellar *

Villalobos, also known as Raul * [UNPUBLISHED]

Flores, *

*

Appellant. *

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Submitted: December 11, 2002

Filed: January 7, 2003

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Before WOLLMAN, HEANEY, and MELLOY, Circuit Judges.

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PER CURIAM.

Osvaldo Villalobos-Cuellar, a Mexican citizen, was convicted of one count of

illegal reentry following deportation in violation of 8 U.S.C. §§ 1326(a) and (b). At

sentencing, the district court determined that the defendant’s criminal history category

did not adequately reflect the seriousness of his past conduct or account for the

likelihood of recidivism. Accordingly, the district court departed upward one
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criminal history category. Villalobos-Cuellar appeals the sentencing departure, and

we affirm.

As the district court noted, Villalobos-Cuellar has engaged in a number of

violent incidents during his time in the United States, including assaulting a police

officer and domestic assault. At sentencing, the district court admitted into evidence

a police narrative regarding the domestic assault conviction. This narrative indicated

that the defendant had punched his girlfriend with a closed fist, knocking her to the

ground, and continued the assault by kicking her head while wearing steel-toed work

boots. He then jumped on her legs and attempted to choke her. According to the

narrative, Villalobos-Cuellar then turned his aggression on his girlfriend’s five-yearold daughter, but relented before physically assaulting her.

It appears the only reason that the assault resulted in a criminal investigation

was because the victim went to the hospital out of fear that her jaw had been broken;

once there, the paramedic saw fit to contact the police. The narrative makes clear that

the defendant had been involved in other similar conduct, but that the victim had not

reported those incidents to the authorities. During one particularly egregious assault

he attacked his girlfriend with a bullwhip and lashed her some thirty times.

The presentence report scored only one point for the domestic assault charge

and resulting conviction, and did not account for the uncharged acts of violence. The

district court believed that Villalobos-Cuellar’s resulting criminal history category did

not adequately reflect his past conduct, and departed upward by one criminal history

category. We review the district court’s application of the guidelines de novo, United

States v. Powell, 283 F.3d 946, 947 (8th Cir. 2002), and the district court’s decision

to depart from the guidelines for an abuse of discretion, United States v. Herr, 202

F.3d 1014, 1016 (8th Cir. 2000).
1

Indeed, a person could be subjected to criminal prosecution for making false

statements in a police report. See Iowa Code § 718.6.

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A sentencing court may depart from the guidelines where the defendant’s

criminal history category does not accurately summarize the defendant’s past conduct

or take into account the likelihood of recidivism. U.S.S.G. § 4A1.3. However, the

basis for the departure must rest on “reliable information,” such as, prior

adjudications or similar adult conduct that did not result in a conviction. See id. 

The district court did not abuse its discretion by departing upward in this

matter. The police narrative in this case qualifies as reliable information supporting

the departure, as it is the type of document that one would expect to contain truthful

statements.1

 Moreover, it contained statements about what appears to be a pattern for

Villalobos-Cuellar: domestic violence. Sadly, however, the abuse here went

unreported until the victim needed to be hospitalized. In such a circumstance, we

cannot fault the district court for considering the defendant’s uncharged violent

conduct when pronouncing its sentence. Accordingly, we affirm.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.