United States v. Grijalva-Lopez

REYNALDO G. GARZA, Circuit Judge: 1 In this appeal, we review the sentence of Defendant-Appellant, Rigoberto GrijalvaLopez, for illegal re-entry following deportation in violation of 8 U.S.C. §§ 1326(a), (b)(2) and 6 U.S.C. §§ 202(3), (4), and 557. For the following reasons, we uphold the sentence. Grijalva-Lopez argues that the district court erred in departing upward from the Sentencing Guidelines range. GrijalvaLopez had previously been charged in state court with residential burglary and aggravated kidnaping, but he eventually pleaded guilty to the lesser charges of trespassing and false imprisonment. He argues that the district court’s consider *159 ation of the charged offenses instead of the convicted offenses without an independent investigation of the facts was in opposition to the requirements of U.S.S.G. § 4A1.3(a)(3) which allows the district court to determine whether a defendant’s criminal history category substantially underrepresents his criminal history or the likelihood that he will commit other crimes. We review the district court’s decision to depart under 18 U.S.C. § 3742(e)(3)(B) de novo. See United States v. Phipps, 368 F.3d 505, 513 (5th Cir.2004); United States v. Lee, 358 F.3d 315, 326-27 (5th Cir.2004). The Sentencing Guidelines do not prohibit a district court from considering information other than the factors listed in § 4A1.3(a)(2) in determining whether a defendant’s criminal history category substantially underrepresents his criminal history or the likelihood that he will commit other crimes. U.S.S.G. §§ 1B1.1, comment (n.2), 4A1.3(a)(2). In this case, the district court did not consider GrijalvaLopez’s prior arrest record itself in deciding to depart upwards and instead relied on information in the Presentence Report. Further, Grijalva-Lopez failed to demonstrate that information found in the Presentence Report and relied upon by the district court was untrue. See United States v. Fitzgerald, 89 F.3d 218, 223 (5th Cir.1996). Thus, the district court did not err in finding that Grijalva-Lopez committed aggravated kidnaping and residential burglary and departing upwards from the Sentencing Guidelines range. Grijalva-Lopez also presents several arguments for the first time on appeal: (1) that none of the information considered by the district court falls within the list of enumerated factors in § 4A1.3(a)(2)(A)-(E) and therefore should not have been considered; (2) that his remote convictions are not serious or similar to the instant offense within the meaning of § 4A1.2; (3) that even if this court determined that some of the offenses were serious or similar offenses, the existence of one or two such convictions did not justify an upward departure; (4) that the misdemeanor offenses cited by the district court did not evidence a propensity for violence; and (5) that the extent of the upward departure was unreasonable and the district court did not consider intermediate sentencing ranges. After a review of these issues for plain error, we find that Grijalva-Lopez has failed to show that the district court committed plain error. See United States v. Vasquez, 216 F.3d 456, 459 (5th Cir.2000). Finally, we defer to the decision of this court in United States v. Pineiro, 377 F.3d 464 (5th Cir.2004) in finding that Grijalva-Lopez’s sentence did not violate the United States Constitution. For the foregoing reasons, the sentence is AFFIRMED. Footnotes [1] 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.