United States v. Javier Cervantes-Valenzuela

Cervantes appeals the district court’s imposition of sentence following his conviction on a guilty plea of being a deported alien found in the United States in violation of 18 U.S.C. § 3231 . He was sentenced at the upper end of the guideline range because of his criminal background. He argues that his sentence was imposed in violation of law because the district court failed to exercise its discretion as required by 18 U.S.C. § 3553 (a). Specifically, he argues that the district court’s citation of the defendant’s criminal history as its reason for choosing the top of the applicable guideline range indicates that the district court failed to consider all the factors in 18 U.S.C. § 3553 (a). Because we do not believe that the district court’s statement indicates that it failed to exercise its discretion, we affirm.

I

The presentence report calculated a base offense level of eight, reduced by two levels for acceptance of responsibility, resulting in a guideline range of 9 to 15 months. Cervantes’s criminal history put him in Category V. The probation officer recommended an upward departure to 24 months in custody because of Cervantes’s extensive criminal background. The district…