Opinion
Nos. 07-20903, 07-41248 Summary Calendar.
October 6, 2008.
James Lee Turner, Assistant U.S. Attorney, U.S. Attorney's Office Southern District of Texas, Houston, TX, for Plaintiff-Appellee.
Marjorie A. Meyers, Federal Public Defender, Federal Public Defender's Office, Southern District of Texas, Houston, TX, for Defendant-Appellant.
Appeals from the United States District Court for the Southern District of Texas, USDC No. 4:07-CR-304-ALL, USDC No. 2:03-CR-79-4.
Before DAVIS, GARZA, and PRADO, Circuit Judges.
Isael Soberanis-Gomez appeals the sentences imposed following his conviction for unlawfully transporting aliens within the United States in violation of 8 U.S.C. § 1324, and the revocation of his supervised release. For the § 1324 offense, the district court departed upward to 46 months from the guidelines range of 24 to 30 months and then imposed a consecutive nine-month term of imprisonment as the revocation sentence. Soberanis-Gomez challenges the sentence as unreasonable. Finding no error, we affirm.
We review sentences for reasonableness in light of the factors set out in 18 U.S.C. § 3553(a), employing an abuse-of-discretion standard. Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 595, 169 L.Ed.2d 445; United States v. Williams, 517 F.3d 801, 808 (5th Cir. 2008). Our review is bifurcated; we look first to whether the court committed procedural error and, if not, to whether the sentence was reasonable. Williams, 517 F.3d at 808. A sentencing court does not abuse its discretion in deciding to depart upwardly when its reasons for doing so (1) advance the objectives set forth in § 3553(a)(2); and (2) are justified by the facts of the case. United States v. Rajwani 476 F.3d 243, 249-50 (5th Cir. 2007).
The district court's departure was based on uncharged conduct, specifically unlawful reentry, which the Government agreed not to pursue as part of Soberanis-Gomez's plea agreement. The sentence of 46 months was at the low end of the range that would have applied if Soberanis-Gomez had been convicted of unlawful reentry. Soberanis-Gomez argues that the district court's sentence undermined his plea agreement and ignored the benefits that his early, pre-indictment plea conferred. He also argues that the court failed to consider his argument that his criminal history was not substantially under-represented, given that he received six points for the prior conviction; that there was nothing extraordinary about his case; and that the sentence imposed was substantially greater than necessary to satisfy the goals of § 3553(a).
The district court did not err in departing upward based on uncharged conduct dismissed as part of a plea agreement. See United States v. Newsom, 508 F.3d 731, 734 (5th Cir. 2007); United States v. Ashburn, 38 F.3d 803, 807-08 (5th Cir. 1994) (en banc).' Further, the district court noted that it had considered Soberanis-Gomez's prior drug conviction, the circumstances of the instant offense, his personal circumstances, and the factors set out in § 3553(a). The court concluded that the case warranted a departure. We find no procedural error in the decision to depart upward.
With respect to the degree of departure and the sentence as a whole, the sentence of 46 months did not constitute an abuse of discretion. See Newsom, 508 F.3d at 735. We also reject the argument that the consecutive nine-month, revocation sentence rendered the entire sentence unreasonable. That sentence was within the guidelines range, and the advisory Guidelines provide for consecutive sentencing in the revocation context. U.S.S.G. § 7B1.3(f).
The judgment of the district court is AFFIRMED.