UNITED STATES of America, Plaintiff-Appellee, v. Jose Manuel SEGURA-DEL REAL, Defendant-Appellant

83 F.3d 275 96 Cal. Daily Op. Serv. 2992 , 96 Daily Journal D.A.R. 4971 UNITED STATES of America, Plaintiff-Appellee, v. Jose Manuel SEGURA-DEL REAL, Defendant-Appellant. No. 95-10299. United States Court of Appeals, Ninth Circuit. Argued and Submitted Feb. 12, 1996. Decided April 30, 1996. Mary McNamara, Assistant Federal Public Defender, San Francisco, California, for the defendant-appellant. Susan E. Olney, Assistant United States Attorney, San Francisco, California, for the plaintiff-appellee. Appeal from the United States District Court for the Northern District of California Charles A. Legge, District Judge, Presiding. D.C. No. CR-94-0496-CAL. Before: REINHARDT, THOMPSON and O'SCANNLAIN, Circuit Judges. DAVID R. THOMPSON, Circuit Judge. 1 Jose Manuel Segura-Del Real pleaded guilty to a one-count indictment for illegal reentry by an alien after deportation subsequent to conviction in violation of 8 U.S.C. § 1326 (b)(1). The district court departed upward from the Sentencing Guidelines and sentenced Segura-Del Real to 41 months in prison. Segura-Del Real appeals this sentence arguing that his prior criminal record, which placed him in criminal history category VI, was not…

Jose Manuel Segura-Del Real pleaded. guilty to a one-count indictment for illegal reentry by an alien after deportation subsequent to conviction in violation of 8 U.S.C. § 1326 (b)(1). The district court departed upward from the Sentencing Guidelines and sentenced Segura-Del Real to 41 months in prison. Segura-Del Real appeals this sentence arguing that his prior criminal record, which placed him in criminal history category VI, was not sufficiently egregious to permit the court to depart upward from that category, and in any event the extent of the district court’s upward departure was unreasonable.

We have jurisdiction under 28 U.S.C. § 1291 and we affirm. We hold that a sentencing court may depart upward from criminal history category VI based upon a defendant’s repetition of a series of offenses which are the same or similar to the defendant’s crime of conviction; and that the record supports the reasonableness of the extent of the district court’s departure.:

FACTS

Under the Sentencing Guidelines, Segura-Del Real had an offense level of 10 and a criminal history category of VI. The district court found that he had 17 prior convictions which added up to 26 criminal history…

dissenting:

The majority holds that an offender in the highest listed criminal history category — an offender who has committed a large number of offenses and who can expect a severe punishment under the Guidelines — may have his Guidelines punishment increased even further solely because his most recent offense is similar to some of his earlier ones. The majority appears to conclude that if a Category VI offender’s latest offense is similar to one or more of his past offenses, he is not only more likely, but significantly more likely to commit future criminal offenses than other Category VI offenders who may have committed a greater number of offenses, perhaps of a more serious nature, but whose offenses are more varied in nature. That conclusion makes little if any sense. Although an argument can be made that in some cases a similarity of offenses may suggest a greater likelihood of recidivism when the persons being compared have each committed a relatively small number of crimes, the argument has no force whatsoever in the case of generally comparable offenders who are already recidivists and who have already repeatedly relapsed into criminal conduct of all types. For this…