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United States of America v. Ulises Alvarado
Case Number: 20-1762
Judge: Before SHEPHERD, ERICKSON, and KOBES, Circuit Judges.
Court: United States Court of Appeals
For the Eighth Circui
St. Louis, MO - Criminal defense lawyer represented defendant with a failure to register as a sex offender charge.
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 Alvarado’s 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
The district court granted the Government’s 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
Alvarado’s 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).
1The Honorable Leonard T. Strand, Chief Judge, United States District Court
for the Northern District of Iowa.
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 Alvarado’s youth and the COVID-19 pandemic as
We review a district court’s 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 defendant’s criminal history category substantially
under-represents the seriousness of the defendant’s 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.”)
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 (2007). It
carefully considered Alvarado’s “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
Alvarado’s 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. Alvarado’s arguments in favor of these
mitigating factors do not rebut the presumption of reasonableness. We find no error
in the district court’s consideration of Alvarado’s criminal history or mitigating
factors, or in its explanation of its decision.
Outcome: The judgment of the district court is affirmed.