United States v. Torres-Garcia

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 06-4824

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

PABLO TORRES-GARCIA, a/k/a Joel Noe
Hernandez-Moreno, a/k/a Jose Garcia-Salazar,
a/k/a Vicente Rojas-Farias,

Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Senior
District Judge. (1:06-cr-00062-WLO)

Submitted: October 15, 2007 Decided: October 30, 2007

Before WILKINSON, KING, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Louis C. Allen, Federal Public Defender, William C. Ingram, First
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Arnold L. Husser, Angela Hewlett Miller, OFFICE OF THE
UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Pablo Torres-Garcia pled guilty pursuant to a plea

agreement to one count of illegal reentry of a deported alien, in

violation of 8 U.S.C. § 1326(a) & (b)(2) (2000). The district

court sentenced Torres-Garcia to 100 months’ imprisonment, an

upward departure of four months from the high end of Torres-

Garcia’s sentencing guidelines range of imprisonment. On appeal,

Torres-Garcia’s attorney filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), stating there are no meritorious

issues for appeal, but raising for the court’s consideration

whether the district court erred in imposing an upward departure.

Torres-Garcia was informed of the opportunity to file a pro se

supplemental brief, but did not do so. The Government did not file

a brief. We affirm.

We will affirm the sentence imposed by the district court

as long as it is within the statutorily prescribed range and

reasonable. United States v. Hughes, 401 F.3d 540 (4th Cir. 2005).

In sentencing a defendant, the district court must: (1) properly

calculate the guideline range; (2) determine whether a sentence

within that range serves the factors under 18 U.S.C.A. § 3553(a)

(West 2000 & Supp. 2007); (3) implement mandatory statutory

limitations; and (4) explain its reasons for selecting the

sentence, especially a sentence outside the advisory range. United

States v. Green, 436 F.3d 449, 455-56 (4th Cir.), cert. denied, 126

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S. Ct. 2309 (2006). Even if the sentence exceeds the advisory

guideline range, it will generally be deemed reasonable “if the

reasons justifying the variance are tied to § 3553(a) and are

plausible.” United States v. Moreland, 437 F.3d 424, 434 (4th

Cir.), cert. denied, 126 S. Ct. 2054 (2006).

If the court finds that a sentence within the guidelines

does not serve § 3553(a) factors, it may impose a different

sentence within statutory limits. If that is the case, the court

should first look “to whether a departure is appropriate based on

the Guidelines Manual or relevant case law.” Moreland, 437 F.3d at

432. The court must make factual findings, as appropriate or

necessary to carry out its sentencing function, and in every case

give the reasons for the sentence imposed, as well as reasons for

particular deviations from the Sentencing Guidelines. Green, 436

F.3d at 455. This court must ask “whether the sentence was

selected pursuant to a reasoned process in accordance with the law,

in which the court did not give excessive weight to any relevant

factor, and which effected a fair and just result in light of the

relevant facts and law.” Id. at 457.

A district court may depart upward from the guidelines

range under U.S. Sentencing Guidelines Manual § 4A1.3 (2005) when

“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

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crimes.” USSG § 4A1.3(a)(1). The guideline further directs that

“[i]n a case in which the court determines that the extent and

nature of the defendant’s criminal history, taken together, are

sufficient to warrant an upward departure from Criminal History

Category VI, the court should structure the departure by moving

incrementally down the sentencing table to the next higher offense

level in Criminal History Category VI until it finds a guideline

range appropriate to the case.” USSG § 4A1.3(a)(4)(B). Commentary

to the guideline states that, “[i]n determining whether an upward

departure from Criminal History Category VI is warranted, the court

should consider that the nature of the prior offenses rather than

simply their number is often more indicative of the seriousness of

the defendant’s criminal record.” USSG § 4A1.3, comment. (n.2(B)).

Our review of the record shows the district court

properly determined that Torres-Garcia’s criminal history category

under-represented his criminal history. It properly moved

incrementally down the sentencing table to the next higher offense

level and chose a sentence from within that range of imprisonment.

We find no error.

In accordance with Anders, we have reviewed the record in

this case and have found no meritorious issues for appeal. We

therefore affirm Torres-Garcia’s conviction and sentence. This

court requires that counsel inform his client, in writing, of the

right to petition the Supreme Court of the United States for

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further review. If he requests that a petition be filed, but

counsel believes that such a petition would be frivolous, then

counsel may move in this court for leave to withdraw from

representation. Counsel’s motion must state that a copy thereof

was served on Torres-Garcia.

We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.

AFFIRMED

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