United States v. Mota-Campos

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 07-5120

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ROLANDO MOTA-CAMPOS, a/k/a Rigoberto Galeno-Moran, a/k/a
Alberto Galeno-Moran, a/k/a Rolando M. Compos, a/k/a Gavino
Barrera-Sala, a/k/a Rigoberto M. Galeno, a/k/a Rolando Morta
Qompos, a/k/a Rigoberto Moran Galeno, a/k/a Alberto Galeno,
a/k/a Gabino Barrera, a/k/a Rolando Morta Campos,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Henry Coke Morgan, Jr.,
Senior District Judge. (4:06-cr-00039-HCM-TEM-1)

Submitted: July 22, 2008 Decided: September 29, 2008

Before WILKINSON, MICHAEL, and TRAXLER, Circuit Judges.

Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Keith Loren
Kimball, Frances H. Pratt, Assistant Federal Public Defenders,
Norfolk, Virginia, for Appellant. Chuck Rosenberg, United States
Attorney, Lisa R. McKeel, Assistant United States Attorney, Newport
News, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Rolando Mota-Campos appeals the 174-month sentence he

received after his case was remanded for resentencing because the

district court failed to follow the incremental procedure required

by U.S. Sentencing Guidelines Manual (U.S.S.G.) § 4A1.3(a)(4)(B)

(2005), and Fourth Circuit precedent for departures above criminal

history category VI. United States v. Mota-Campos, 237 F. App’x

840 (4th Cir. 2007). On remand, the district court reimposed the

same sentence, but explained its reasons for the extent of the

departure. Mota-Campos contends on appeal that the sentence is

both procedurally and substantively unreasonable. We disagree, and

affirm the sentence.

The court identified two grounds that justified a

departure above category VI. First, Mota-Campos had been deported

three times before, with the deportation being handled

administratively each time. Thus, Mota-Campos had not been

prosecuted for his initial unlawful entry or his two previous

illegal reentries. The court reasoned that, because U.S.S.G.

§ 2L1.2 provided a base offense level of 8 for the crime of illegal

reentry, a departure of eight offense levels was warranted for

Mota-Campos’ two prior illegal reentries.

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 Second, the court noted that Mota-Campos had three

convictions for driving under the influence (DUI) in Virginia

within ten years. Under Va. Code Ann. § 18.2-270(c)(1) (Lexis-

Nexis 2007), a third DUI conviction within ten years is a felony

with a mandatory minimum sentence of ninety days imprisonment.

However, Mota-Campos’ third Virginia DUI conviction was treated as

a first offense, for which he received a 30-day sentence.1 The

district court determined that, if Mota-Campos had not hidden his

identity with aliases, he would have sustained another felony

conviction, ensuring his placement in category VI.2 The court

reasoned that a prior felony conviction alone would also increase

the base offense level by four levels, see U.S.S.G.

§ 2L1.2(b)(1)(D), and that an alternative way of structuring the

departure would be to add four offense levels for the third DUI

conviction and one offense level for each of his uncounted illegal

reentries, resulting in a departure to offense level 28. Under

either calculation, which would have produced guideline ranges of

1
Mota-Campos was sentenced to 30 days in jail in April 2003
for a DUI conviction, received a suspended sentence in December
2003 for another DUI conviction, and was again sentenced to 30 days
in jail for a DUI conviction in November 2004. According to the
government, Mota-Campos was charged as “Alberto Galeno,” “Rigoberto
M. Compos,” and “Rigoberto M. Galeno.” He did not dispute this
information.
2
The court wisely decided not to treat Mota-Campos’ DUI
offenses as crimes of violence. The Supreme Court has since held,
in Begay v. United States, 128 S. Ct. 1581 (2008), that driving
under the influence is a not a “violent felony” under 18 U.S.C.A.
§ 924(e) (West 2000 & Supp. 2008).

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151-188 months or 140-175 months, respectively, the court decided

that a sentence of 174 months was appropriate.

In Gall v. United States, 128 S. Ct. 586 (2007), the

Supreme Court set out the standards for appellate review of

sentences as follows:

Regardless of whether the sentence imposed is inside or
outside the Guidelines range, the appellate court must
review the sentence under an abuse-of-discretion
standard. It must first ensure that the district court
committed no significant procedural error, such as
failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory,
failing to consider the § 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing to
adequately explain the chosen sentence — including an
explanation for any deviation from the Guidelines range.
Assuming that the district court’s sentencing decision is
procedurally sound, the appellate court should then
consider the substantive reasonableness of the sentence
imposed under an abuse-of-discretion standard.

Id. at 597.

Mota-Campos contends that his sentence is procedurally

unreasonable because (1) the district court failed to comply with

the incremental approach mandated by U.S.S.G. § 4A1.3; (2) its

assignment of seven or eight additional offense levels overstates

his criminal record; and (3) the district court failed to consider

that the sentence created unwarranted disparity among similarly

situated defendants.

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 With respect to the incremental approach, Mota-Campos

argues that the court failed to consider whether any offense level

between 21 and 28 or 29 was sufficient, but he concedes that the

district court need not explain its rejection of each intervening

offense level. See United States v. Dalton, 477 F.3d 195, 199 (4th

Cir. 2007). The court’s explanation of its reasons for departing

to offense level 28 or 29 carried with it an implicit rejection of

all the intervening levels as inadequate. The court thus

adequately complied with the incremental approach.

Mota-Campos also argues that the court erred by treating

offense levels as equivalent to criminal history points. We

conclude that the court did not equate the two, but discussed the

various offenses which were unscored in Mota-Campos’ criminal

history, and examined how the base offense level was enhanced under

U.S.S.G. § 2L1.2 for such offenses to quantify the increase it

believed to be appropriate. Mota-Campos further maintains that the

court improperly assessed a four-level enhancement under § 2L1.2

for a prior felony conviction when he had already received a

sixteen-level enhancement and the guideline instructs the court to

apply only the greatest enhancement that may apply. In this

instance also, the court merely used the various enhancements in

§ 2L1.2 as a guide in quantifying the seriousness of the offenses

it sought to punish by means of the departure. While the court

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could have proceeded differently, Mota-Campos has not shown

procedural error in this respect.

Last, Mota-Campos claims that the court erred in failing

to consider the disparity created by the departure between his

sentence and the sentences of similarly situated defendants.

However, in Gall, the Supreme Court held that, where the district

court has “correctly calculated and carefully reviewed the

Guidelines range,” it “necessarily gave significant weight and

consideration to the need to avoid unwarranted disparities.” Gall,

128 S. Ct. at 599. The district court in this case correctly

calculated the guideline range and carefully reviewed it before

departing. Therefore, Mota-Campos has not shown that the court

failed to consider the need to avoid sentence disparity. We

conclude that the sentence was procedurally reasonable.

As explained in Gall, when reviewing a sentence outside

the guideline range for substantive reasonableness, the appellate

court should “take into account the totality of the circumstances

. . . .” Gall, 128 S. Ct. at 597. The court –

may consider the extent of the deviation, but must give
due deference to the district court’s decision that the
§ 3553(a) factors, on a whole, justify the extent of the
variance. The fact that the appellate court might
reasonably have concluded that a different sentence was
appropriate is insufficient to justify reversal of the
district court.

Id.

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 Mota-Campos argues that the district court’s departure

creates an unwarranted disparity so severe that the sentence must

be reversed. However, in light of Gall’s conclusion that the

sentencing court “is in a superior position to find facts and judge

their import under § 3553(a) in the individual case,” id., and that

its sentencing decision should be accorded great deference, we

conclude that the sentence is not substantively unreasonable.

We therefore affirm the sentence imposed by the district

court. 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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