UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4107
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOSE ALVARADO-IBANEZ, a/k/a Jose Saucedo-Rios, a/k/a Ramon
Garcia-Perez, a/k/a Manuel Angel Perez,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan,
Chief District Judge. (5:07-cr-00206-FL-1)
Submitted: January 14, 2009 Decided: February 4, 2009
Before MICHAEL, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney, Anne
M. Hayes, Jennifer P. May-Parker, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jose Alvarado-Ibanez pled guilty to illegal reentry
into the United States after deportation, 8 U.S.C. § 1326(a),
(b)(2) (2006), and was sentenced to a term of ninety-six months
imprisonment. Alvarado-Ibanez argues on appeal that his
sentence is unreasonable because the district court’s departure
above the guideline range pursuant to U.S. Sentencing Guidelines
Manual (USSG) § 4A1.3(a) (2007) was unwarranted and the
departure from criminal history category V to VI was excessive.
We affirm.
Alvarado-Ibanez had 11 criminal history points, which
placed him in criminal history category V. He had previously
been deported twelve times and had used forty-seven aliases.
The sentences for ten of his prior convictions, including three
for illegal reentry, as well as seven felony convictions for
burglary, receiving stolen property, and a drug offense, were
too old to be counted in his criminal history. See USSG
§ 4A1.2(e).
The district court determined that a departure was
warranted because Alvarado-Ibanez’s record indicated a high
likelihood that he would again enter the country illegally and
that he would commit additional crimes. In making this
determination, the court considered his record of recidivism and
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uncounted prior sentences, as well as the sentencing factors set
out under 18 U.S.C. § 3553(a) (2006).
We review a sentence for abuse of discretion. See
Gall v. United States, ___ U.S. ___, 128 S. Ct. 586, 597 (2007).
First, we must “ensure that the district court committed no
significant procedural error,” including improperly calculating
the Guidelines range, not considering the § 3553(a) factors,
relying on clearly erroneous facts, or giving an inadequate
explanation for the sentence. Id. at 597; United States v.
Osborne, 514 F.3d 377, 387 (4th Cir.), cert. denied, 128 S. Ct.
2525 (2008). We then consider the substantive reasonableness of
the sentence imposed, “tak[ing] into account the totality of the
circumstances, including the extent of any variance from the
Guidelines range.” Gall, 128 S. Ct. at 597. If the sentence is
outside the guideline range, we “must give due deference to the
district court’s decision that the § 3553(a) factors, on a
whole, justify the extent of the variance.” Id.
Under USSG § 4A1.3, a district court may depart upward
from an applicable Guidelines range 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 . . . .” USSG § 4A1.3(a).
In deciding whether a departure is warranted under § 4A1.3, a
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sentencing court may consider prior sentences for similar, or
serious dissimilar, criminal conduct not counted in the
defendant’s criminal history because the sentence is outside the
applicable time period. USSG § 4A1.2, comment. n.8. The
district court decided that Alvarado-Ibanez’s long history of
illegally entering the United States and committing crimes while
in this country established a high likelihood that he would
illegally reenter again after his release from custody. The
court also considered Alvarado-Ibanez’s many serious but
uncounted felony convictions. We conclude that the court’s
decision to depart under § 4A1.3 and its one-category departure
from category V to category VI was factually supported and that
the resulting sentence was reasonable. Moreover, the court
adequately explained its reasons for the departure.
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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