1

The Honorable Mark W. Bennett, United States District Judge for the Northern

District of Iowa.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

Nos. 08-2582/2583

___________

United States of America, *

*

Plaintiff - Appellee, *

* Appeal from the United States

v. * District Court for the

* Northern District of Iowa.

Jose Guadalupe Ruvalcava-Perez, also *

known as Alvara Hernandez Hermosito, *

also known as Andres Torrez, also *

known as Guadalupe Perez, also known *

as Teodoro Rodriguez Perez, also *

known as Alvara Hernandez, *

*

Defendant - Appellant. *

___________

Submitted: March 9, 2009

 Filed: April 14, 2009

___________

Before MURPHY, MELLOY, and SHEPHERD, Circuit Judges.

___________

MURPHY, Circuit Judge.

Jose Guadalupe Ruvalcava-Perez pled guilty to a drug offense and illegal

reentry after deportation. The district court1

 found that criminal history category VI
2

Ruvalcava-Perez has affirmatively abandoned his revocation appeal.

-2-

underrepresented Ruvalcava-Perez’s criminal history and departed upward from the

advisory guideline range by two offense levels. The court also imposed an upward

variance of 48 months and sentenced Ruvalcava-Perez to 210 months in prison. In

addition the court revoked a prior existing supervised release term and imposed a

concurrent term of 24 months in prison.2

 Ruvalcava-Perez appeals the upward

departure and variance. He also challenges the reasonableness of the 210 month

sentence. We affirm. 

In November 2007 Ruvalcava-Perez was arrested following a traffic stop and

was found in possession of cocaine. He was later identified as a 29 year old Mexican

citizen who had previously been deported in October 1996, July 2000, December

2002, and October 2006. A federal grand jury indicted Ruvalcava-Perez on one count

of possessing cocaine with intent to distribute within 1000 feet of a playground, in

violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 860, and one count of reentering

the United States illegally after having been convicted of an aggravated felony and

deported, in violation of 8 U.S.C. § 1326(a), (b)(2). 

The presentence report calculated Ruvalcava-Perez’s total offense level to be

25 with a criminal history category of VI . His criminal history score of 17 included

5 points for three domestic abuse convictions all against the same female victim, see

U.S.S.G. § 4A1.1(b),(c), and 5 points for two convictions of illegal reentry, see

U.S.S.G. § 4A1.1(a), (b). The advisory guideline range was 110 to 137 months. 

At the sentencing hearing, the government moved for a one level upward

departure on the ground that Ruvalcava-Perez’s criminal history category of VI

underrepresented his actual criminal history and the likelihood of recidivism. See

U.S.S.G. § 4A1.3(a)(1). The district court pointed out that Ruvalcava-Perez had

obtained several convictions within a relatively short period of time and that he was
-3-

a “serial violator” of reentering the country illegally but had not been prosecuted for

all of his illegal reentries. In addition the court stated that Ruvalcava-Perez had “no

ability to conform his conduct to the requirements of the law.” Based on those

findings, the district court departed upward two levels, giving Ruvalcava-Perez an

advisory guideline range of 130 to 162 months.

Finding that the advisory guideline range did not take into account RuvalcavaPerez’s history of violence against women, the district court made an upward variance

of 48 months from the high end of Ruvalcava-Perez’s sentencing range and imposed

a 210 month prison term. In support of its decision the court stated that the sentence

was based on the factors in 18 U.S.C. § 3553(a), especially the extent and frequency

of Ruvalcava-Perez’s history of domestic abuse and the need to protect society. The

court found particularly “shocking” Ruvalcava-Perez’s repeated beatings of his

girlfriend and the use of a firearm to threaten her. In arriving at its ultimate

conclusion, the court noted that Ruvalcava-Perez was a “violent, gun-toting drug

dealer who’s a menace to society” with a “total disregard for the law.” RuvalcavaPerez appeals from the judgment, challenging the district court’s upward departure,

variance, and the reasonableness of his sentence. 

In sentencing a defendant, the district court should first determine the

appropriate guideline range, then evaluate whether a traditional departure is

warranted, and finally decide whether or not to impose a guideline sentence after

considering all the § 3553(a) sentencing factors. United States v. Hawk Wing, 433

F.3d 622, 631 (8th Cir. 2006). This court reviews a sentence by first ensuring that the

district court did not commit any procedural errors, such as inadequately explaining

the decision to deviate from the guideline range. United States v. McKinzie, 557 F.3d

931, 933 (8th Cir. 2009) (citing Gall v. United States, 128 S. Ct. 586, 597 (2007)). If

there are no significant procedural errors, this court reviews the ultimate sentence,

whether inside or outside the guideline range, for reasonableness under an abuse of

discretion standard. Gall, 128 S. Ct. at 597. A sentencing court abuses its discretion
-4-

if it “fails to consider a relevant factor . . . gives significant weight to an improper or

irrelevant factor, or . . . commits a clear error of judgment.” United States v. Haack,

403 F.3d 997, 1004 (8th Cir. 2005).

Ruvalcava-Perez first argues that the district court abused its discretion by

departing upward from his advisory guideline range pursuant to § 4A1.3. He contends

that category VI adequately represented his criminal history, because most of his prior

convictions were misdemeanors that he committed at a young age. Ruvalcava-Perez

also challenges the extent of the departure, noting that the government only moved for

a one level departure.

A district court’s decision to depart upward from the advisory guideline range

is reviewed for abuse of discretion, and the extent of that departure is reviewed for

reasonableness. United States v. Fogg, 409 F.3d 1022, 1026 (8th Cir. 2005). Section

4A1.3(a)(1) permits an upward departure when there is “reliable information” that the

seriousness of the defendant’s past crimes or the likelihood that he would commit

others was not fully reflected in his criminal history category. 

The district court did not abuse its discretion in departing upward based on its

finding that criminal history category VI substantially underrepresented the

seriousness of Ruvalcava-Perez’s criminal history and risk of recidivism. Here, the

17 criminal history points calculated in the presentence report were 4 more than the

13 required for category VI, see generally U.S.S.G. Ch. 5, Pt. A, and they did not

reflect Ruvalcava-Perez’s prior illegal reentries that were not prosecuted, but which

can be a basis for departure under U.S.S.G. § 4A1.3(a)(2)(E) (prior similar adult

criminal conduct not resulting in criminal conviction). The court also noted that

Ruvalcava-Perez was a “serial violator” with regard to reentry and that he had

amassed several convictions in a short period of time. See United States v. Walking

Eagle, 553 F.3d 654, 657 (8th Cir. 2009) (in deciding defendant’s likelihood to

recidivate court may consider evidence of “obvious incorrigibility” and conclude that
-5-

leniency has not been effective); see also United States v. Miller, 484 F.3d 968, 971

(8th Cir. 2007) (upward departure pursuant to § 4A1.3 may be particularly appropriate

in context of younger defendants who have repeatedly received lenient sentences, yet

who may pose significant risk of serious recidivism). 

As to the extent of the departure, we are satisfied with the district court’s

explanation for its decision to impose an upward departure of two levels because we

agree with the court that Ruvalcava-Perez’s criminal history record indicates that he

is unable “to conform his conduct to the requirements of the law.” See United States

v. Sample, 213 F.3d 1029, 1034 (8th Cir. 2000) (district court’s decision as to extent

of upward departure is “quintessentially a judgment call and we respect the district

court’s superior feel for the case”); see also U.S.S.G. § 4A1.3(a)(4)(B) (when

departing upward from criminal history category VI, court should move incrementally

down sentencing table to next higher offense level within category VI until it finds

appropriate guideline range).

Ruvalcava-Perez next asserts that the extent of the variance was unreasonable

because his domestic violence convictions were already taken into account by the

guidelines. “[W]e review the reasonableness of the sentence, giving due deference to

the lower court for any variance imposed.” United States v. Barrett, 552 F.3d 724,

727 (8th Cir. 2009). When reviewing the reasonableness of a nonguideline sentence,

we may consider the degree of the variance, but we cannot require extraordinary

circumstances to justify the sentence. See Gall, 128 S. Ct. at 594-95. Here, the

district court considered the § 3553(a) factors and varied upward 48 months imposing

a sentence of 210 months. The court based this variance on Ruvalcava-Perez’s history

of violence against women, the extent and frequency of his prior violent conduct, his

“total disregard for the law,” and the need to protect society. See 18 U.S.C.

§ 3553(a)(1), (2)(C). Giving “due deference to the district court’s decision that the

§ 3553(a) factors, on a whole, justify the extent of the variance,” see Gall, 128 S. Ct.

at 597, we do not find Ruvalcava-Perez’s sentence unreasonable, see Barrett, 552 F.3d
-6-

at 727 (court may consider defendant’s criminal history even if that history is included

in defendant’s criminal history category).

Accordingly, we affirm the judgment of the district court.

______________________________