United States v. Penaloza-Hernandez

MEMORANDUM ** Miguel Angel Penaloza-Hernandez (“Appellant”) appeals the sentence imposed by the district court following his guilty plea to one count of illegal reentry following deportation, in violation of 8 U.S.C. § 1326(a). Appellant contends that the district court abused its discretion when it imposed an upward departure on the basis that Appellant’s criminal history was under-represented. We have jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, and we affirm. The district court imposed a three-level upward departure pursuant to U.S.S.G. § 4A1.3, which provides that a departure “is warranted when the criminal history category significantly under-represents the seriousness of the defendant’s criminal history or the likelihood that the defendant will commit further crimes.” The court’s reliance on Appellant’s repeated immigration violations and on the fact that his numerous prior convictions “have not deterred him from illegally reentering the United States” to justify the departure did not constitute an abuse of discretion. See United States v. Sablan, 114 F.3d 913, 915-16 (9th Cir.1997) (en banc) (reviewing for an abuse of discretion the district court’s decision to depart from the Sen649 fencing Guidelines); see also United States v. Connelly, 156 F.3d 978, 985 (9th Cir. 1998) (stating that “[departure is also justified purely on the basis of Defendant’s likelihood of recidivism”). Moreover, the three-level departure imposed by the court, increasing Appellant’s sentencing range from 24-30 months to 33-11 months, was not unreasonable. Cf. United States v. Roston, 168 F.3d 377, 379 & n. 2 (9th Cir.) (affirming an increase from 151-188 months to 324-405 months), cert, denied, 528 U.S. 843,120 S.Ct. 112,145 L.Ed.2d 95 (1999); United States v. Beasley, 90 F.3d 400, 402-04 (9th Cir.1996) (affirming an increase from 100-125 months to 151-188 months). The sentence imposed by the district court is accordingly AFFIRMED. Footnotes [**] This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir. R. 36-3.