USA v. Gonzalez, No. 07-40444 (5th Cir. 2007)

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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 07-40444 Summary Calendar December 13, 2007 Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA Plaintiff Appellee v. ARTEMIO JAVIER GONZALEZ Defendant Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 2:06-CR-784-ALL Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges. PER CURIAM:* Artemio Javier Gonzalez appeals the 27-month sentence imposed following his guilty plea conviction for transporting unlawful aliens in violation of 8 U.S.C. § 1324. The district court departed upwardly from a range of 6 to 12 months to a sentence of 27 months, apparently based on prior arrests. As Gonzalez concedes, our review is limited to plain error. See United States v. Jones, 489 F.3d 679, 681 (5th Cir. 2007). * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 07-40444 It is plain error for a district court to depart upwardly based solely on a prior arrest record. Id. at 681; see also United States v. Jones, 444 F.3d 430, 43437 (5th Cir. 2006), cert. denied, 126 S. Ct. 2958 (2006). Given the Government s concession of reversible plain error, we VACATE the sentence imposed and REMAND this matter for resentencing. We express no opinion on whether a non-guidelines sentence above the advisory range or an upward departure may be appropriate on some other basis. Because this appeal has been expedited, our rules require issuance of the mandate forthwith automatically. See 5TH CIR. R. 41.4. Thus, the motion for summary disposition and issuance of the mandate forthwith is DENIED AS UNNECESSARY. 2

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