United States v. Aburto

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
May 11, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-40903
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERTO ABURTO,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-760-1
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Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Roberto Aburto appeals his sentence for (1) possessing a
counterfeit social security card with intent to sell;
(2) transferring a false United States identification document;
and (3) possessing a false United States document-making
implement with the intent that such implement would be used in
the production of false United States identification documents.
He argues that the district court’s upward departure was an abuse
of discretion. He asserts that the district court’s sentence was

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unreasonable, even though the Guidelines are advisory after
United States v. Booker, 543 U.S. 220 (2005), because the
district court relied on an impermissible factor, its subjective
disagreement with the Guidelines. Aburto contends that his
sentence should be vacated and that this matter should be
remanded to the district court for resentencing because he was
prejudiced since the court’s “disagreement with the Guidelines
was determinative in making its sentencing decision.” He also
argues that this matter should be assigned to a different judge
on remand because of the district court’s subjective
dissatisfaction with the Guidelines.
After Booker, this court continues to review a district
court’s interpretation and application of the Guidelines de novo
and its factual findings for clear error. See United States v.
Villanueva, 408 F.3d 193, 202-04 (5th Cir.), cert. denied, 126
S. Ct. 268 (2005). Upward departures are reviewed for
reasonableness, which entails review of “the district court’s
decision to depart upwardly and the extent of that departure for
abuse of discretion.” United States v. Zuniga-Peralta, ___ F.3d
___, No. 04-50575, 2006 WL 522459, at *1 (5th Cir. Mar. 6, 2006)
(internal quotation marks and citation omitted). An upward
departure is not an abuse of the district court’s discretion when
it (1) “advance[s] the objectives set forth in 18 U.S.C.
§ 3553(a)(2)”; and (2) is “justified by the facts of the case.”
Id. at *2 (internal quotation marks and citation omitted).

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No. 05-40903
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Because the district court enhanced Aburto’s sentence
pursuant to U.S.S.G. §§ 5K2.0 & 5K2.14, the sentence was a
guideline sentence. See United States v. Smith, 440 F.3d 704,
707 (5th Cir. 2006). “The record . . . makes abundantly clear,
through the court’s adoption of the PSR, its statements at
sentencing, and its Statement of Reasons, the reasons for an
upward departure.” Zuniga-Peralta, 2006 WL 522459, at *2. The
district court did not abuse its discretion or consider an
improper factor when it upwardly departed. Given the court’s
reasons for the upward departure, the extent of the departure was
not unreasonable. See United States v. Simkanin, 420 F.3d 397,
419 (5th Cir. 2005), petition for cert. filed (Jan. 25, 2006)
(No. 05-948); United States v. Smith, 417 F.3d 483, 492-93 (5th
Cir.), cert. denied, 126 S. Ct. 713 (2005).
Because we affirm the district court’s judgment, Aburto’s
argument that this matter should be assigned to a different judge
on remand is moot.
Accordingly, the judgment of the district court is AFFIRMED.

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