United States v. Pena-Garcia

United States Court of Appeals
for the Fifth Circuit

No. 20-10240
Summary Calendar

United States of America,

Plaintiff—Appellee,

versus

Eduardo Pena-Garcia,

Defendant—Appellant.

Appeal from the United States District Court
for the Northern District of Texas
No. 4:19-CR-294-1

Before King, Smith, and Wilson, Circuit Judges.
Per Curiam:*
Eduardo Pena-Garcia appeals the sentence imposed on his guilty-plea
conviction of illegal reentry following removal. See 8 U.S.C. § 1326(a). The
guideline range was 2 to 8 months, but the district court upwardly departed
to 15 months, using U.S.S.G. § 4A1.3, p.s. Pena-Garcia contends that the

*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this opin-
ion should not be published and is not precedent except under the limited circumstances
set forth in 5th Circuit Rule 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
October 9, 2020

Lyle W. Cayce
Clerk
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No. 20-10240
2
sentence is substantively unreasonable because it represents a clear error in
judgment in balancing the sentencing factors.
This court reviews “the substantive reasonableness of the sentence
imposed under an abuse-of-discretion standard.” Gall v. United States,
552 U.S. 38, 51 (2007). In reviewing an upward departure, we evaluate “the
district court’s decision to depart upwardly and the extent of that departure
for abuse of discretion.” United States v. Zuniga-Peralta, 442 F.3d 345, 347
(5th Cir. 2006) (internal quotation marks and citation omitted). There is no
abuse of discretion if the district court’s reasons for departing advance the
objectives of 18 U.S.C. § 3553(a)(2) and “are justified by the facts of the
case.” Id. (quotation marks and citation omitted); see also United States v.
Zelaya-Rosales, 707 F.3d 542, 546 (5th Cir. 2013).
Pena-Garcia asserts that his accumulation of five criminal history
points and his placement in criminal history category III resulted from rela-
tively minor offenses. He does not contend that the district court erred in
considering his pending state charge of aggravated assault with a deadly wea-
pon, but he notes that even a conviction and sentence on the pending state
charge would not have placed him in criminal history category V, the cate-
gory used by the district court. With regard to the district court’s consider-
ation of his voluntary returns and deportations to Mexico, Pena-Garcia
asserts, in abbreviated fashion, that there was not sufficiently reliable infor-
mation in the presentence report that indicates he could or should have
received criminal history points for such incidents.
The information in the presentence report generally is presumed to be
reliable. United States v. Nava, 624 F.3d 226, 231 (5th Cir. 2010). Pena-
Garcia has not shown that the district court erred in considering such infor-
mation. See United States v. Gomez-Alvarez, 781 F.3d 787, 796 (5th Cir. 2015).
Nor has he shown that the court erred in relying on his voluntary returns and
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deportations in upwardly departing under § 4A1.3. See Zuniga-Peralta,
442 F.3d at 347-48 (affirming an upward departure under § 4A1.3 where the
court relied, inter alia, on the defendant’s “multiple deportations”).
Further, we are satisfied that the reasons given by the district court for
upwardly departing advance the objectives of § 3553(a)(2), such as promot-
ing respect for the law and affording adequate deterrence to criminal con-
duct, and we conclude that the reasons are justified by the facts. See
§ 3553(a)(2)(A), (B); Zuniga-Peralta, 442 F.3d at 347. Moreover, the extent
of the departure is well within the range we have upheld in illegal-reentry
cases. See, e.g., Zuniga-Peralta, 442 F.3d at 347−48 (affirming upward depar-
ture from a guideline range of 27−33 months to a sentence of 60 months);
United States v. Herrera-Garduno, 519 F.3d 526, 531−32 (5th Cir. 2008)
(affirming upward departure from guideline range of 21−27 months to a sen-
tence of 60 months).
AFFIRMED.
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