UNITED STATES v. ALVARADO (2021)

United States Court of Appeals, Eighth Circuit.2021-06-25No. No. 20-1762

Summary · law.co

Holding. The court affirmed the district court's decision to depart upward from the guideline criminal history category and impose a 15-month sentence, finding no abuse of discretion in the court's consideration of Alvarado's criminal history, evaluation of mitigating factors, or explanation of its sentencing decision.

Ulises Alvarado pleaded guilty to failing to register as a sex offender and received a 15-month prison sentence. The district court departed upward from the guideline range of 6 to 12 months by adjusting Alvarado's criminal history category from I to III, resulting in a range of 10 to 16 months. The court justified this departure based on reliable information showing that Alvarado's criminal history, including remote convictions and a serious 2019 incident involving threats and resistance to law enforcement, substantially under-represented the seriousness of his criminal conduct and his likelihood to reoffend.

Alvarado challenged the departure as an abuse of discretion and argued that the court failed to adequately consider mitigating factors such as his difficult childhood, parental divorce, early alcohol exposure, and the COVID-19 pandemic. The appellate court rejected these arguments, finding that the district court carefully weighed all relevant factors under the sentencing statute, properly explained its reasoning, and stayed within the presumptively reasonable range following an upward departure.

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Key issues

Whether an upward departure from criminal history guidelines based on under-representation of seriousness constitutes an abuse of discretion
Whether remote criminal convictions may be considered in evaluating criminal history for sentencing purposes
Whether the district court adequately weighed mitigating factors including youth, adverse childhood circumstances, and pandemic-related concerns

Procedural posture

Alvarado appealed his 15-month sentence imposed after pleading guilty to failure to register as a sex offender, challenging the district court's upward departure from the guideline range.

Authorities cited

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Opinion · public domain

[Unpublished]

Ulises Alvarado pleaded guilty to failure to register as a sex offender, 18 U.S.C. § 2250(a), and was sentenced to 15 months in prison. He argues the district court

abused its discretion in departing upward based on under-representation of his criminal history. We affirm.

Alvarado had to register as a sex offender after two 1998 convictions for unlawful sexual conduct. After he was arrested for failing to register in Iowa, he pleaded guilty to one count, and a Presentence Investigation Report was prepared. While Alvarado had a lengthy criminal history, many convictions were too remote to be counted. The U.S. Probation Office assessed him a criminal history category I and a total offense level of 10, yielding a sentencing range of 6 to 12 months in prison.

The Government moved to depart upward under U.S.S.G. § 4A1.3(a) because the sentencing range under-represented the seriousness of Alvarados criminal history and his likelihood of reoffending. The Government asked for a criminal history VI, which would have resulted in a sentence between 24 and 30 months. Alvarado resisted and urged the district court to weigh mitigating factors like his parents’ divorce, his early exposure to alcohol, and the threat of the COVID-19 pandemic in prison.

The district court granted the Governments motion, but departed only to a criminal history category III and a sentencing range of 10 to 16 months. The court imposed a sentence of 15 months with 5 years of supervised release, reasoning that Alvarados criminal history, even if remote, was serious and recent enough to show that he continued to be a danger to the public and was likely to reoffend. The court also weighed aggravating and mitigating factors under 18 U.S.C. § 3553(a).

Alvarado appeals, arguing that the district court abused its discretion in departing upwards. He also suggests the district court did not adequately explain its decision or appropriately weigh Alvarados youth and the COVID-19 pandemic as mitigating factors.

II.

We review a district courts decision to depart from the Guidelines for abuse of discretion. United States v. Vasquez, 552 F.3d 734, 738 (8th Cir. 2009). An upward departure from the criminal history category is permissible if “reliable information indicates that the defendants criminal history category substantially under-represents the seriousness of the defendants criminal history or the likelihood that the defendant will commit other crimes.” U.S.S.G. § 4A1.3(a)(1). District courts may consider “dated offenses ․ for purposes of an upward departure under § 4A1.3(a)(2)(A).” United States v. Cooke, 853 F.3d 464, 473 (8th Cir. 2017). A sentence within the advisory Guidelines range is presumptively reasonable. United States v. Jones, 639 F.3d 484, 488 (8th Cir. 2011) (“[T]he range following an upward departure under Guidelines § 4A1.3 for under-represented criminal history is the ․ advisory Guidelines range. And [it] enjoys the presumption of reasonableness.”) (citation omitted).

The district court did not abuse its discretion in departing upward under § 4A1.3(a) and sentencing Alvarado to 15 months in prison. The court “considered the parties’ arguments and ha[d] a reasoned basis for exercising [its] own legal decisionmaking authority.” Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). It carefully considered Alvarados “lengthy and disturbing” criminal record—especially his 2019 threat to kill hospital workers while he was intoxicated and “evading or resisting or otherwise being aggressive with regard to law enforcement”—and found the underlying behavior posed a danger to the public and indicated a likelihood of recidivism. D. Ct. Dkt. 50 at 29–30. It engaged in a full discussion of the § 3553(a) factors and acknowledged the adverse impact of Alvarados parents’ divorce and his early exposure to alcohol on his mental health. The district court also considered the pandemic and declined to hold a generalized threat to health justified a lower sentence. Alvarados arguments in favor of these mitigating factors do not rebut the presumption of reasonableness. We find no error in the district courts consideration of Alvarados criminal history or mitigating factors, or in its explanation of its decision.

III.

The judgment of the district court is affirmed.

FOOTNOTES

. The Honorable Leonard T. Strand, Chief Judge, United States District Court for the Northern District of Iowa.

PER CURIAM.