Notice: Eighth Circuit Rule 28a(k) Governs Citation of Unpublished Opinions and Provides That They Are Not Precedent and Generally Should Not Be Cited Unless Relevant to Establishing the Doctrines of Res Judicata, Collateral Estoppel, the Law of the Case, or if the Opinion Has Persuasive Value on a Material Issue and No Published Opinion Would Serve As Well.united States of America, Appellee, v. Manuel Reyes-garcia, Appellant, 92 F.3d 1190 (8th Cir. 1996)

Manuel Reyes-Garcia appeals the 41-month sentence imposed by the district court¹  after a jury found him guilty of illegally re-entering the United States after deportation, in violation of 8 U.S.C. § 1326. We affirm.

Following his conviction, Reyes-Garcia consented to administrative deportation and at sentencing, Reyes-Garcia and the government sought a downward departure under U.S.S.G. § 5K2.0, p.s., on this ground. The district court denied a downward departure and departed upward, concluding that Reyes-Garcia's criminal history score did not adequately represent the seriousness of his criminal history, which included seven prior instances of deportation without criminal conviction, three prior deportation convictions, and prior burglary and drug possession convictions while illegally in the United States. Because Reyes-Garcia was already in Criminal History Category VI, the court moved incrementally down the sentencing table and assessed a seven-month upward departure.

We reject Reyes-Garcia's contention that the district court erred by departing upward. The Guidelines expressly authorize departure when a defendant's criminal history is inadequately represented by his criminal history category. See U.S.S.G. §§ 4A1.3, p.s., and 2L1.2, comment. (n.2) (§ 4A1.3 upward departure may be warranted where defendant has repeated prior instances of deportation without criminal conviction). Reyes-Garcia has repeatedly violated the immigration laws, indicating a likelihood of committing future crimes, and he committed more serious crimes while illegally in the United States. The sentence is reasonable, well below the five-year statutory maximum for Reyes-Garcia's offense. See 8 U.S.C. § 1326. In these circumstances, the district court did not abuse its discretion in departing upward. See Koon v. United States, No. 94-1664, 64 U.S.L.W. 4512 (U.S. June 13, 1996) (standard of review); United States v. Thomas, 914 F.2d 139, 143-44 (8th Cir. 1990); United States v. Carey, 898 F.2d 642, 646 (8th Cir. 1990). Because the court properly exercised its discretion to depart upward, its decision not to grant a downward departure is not reviewable on appeal.