UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-5007
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JUAN ESPINOSA-MARTINEZ,
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. (7:07-cr-00021-FL)
Submitted: March 26, 2009 Decided: April 22, 2009
Before WILKINSON, MOTZ, and KING, 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Affirmed by unpublished per curiam opinion.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, Banumathi Rangarajan, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Juan Espinosa-Martinez pled guilty without a plea
agreement to illegal reentry by a deported aggravated felon, in
violation of 8 U.S.C. § 1326(a)(2), (b)(2) (2006). He now
appeals his 118-month sentence, contending that it is
unreasonable. We affirm.
I
Espinosa-Martinez’s base offense level was 8. See
U.S. Sentencing Guidelines Manual § 2L1.2 (2006). Sixteen
levels were added because he previously was deported following a
conviction for a felony drug trafficking offense for which he
was sentenced to more than thirteen months in prison. See USSG
§ 2L1.2(b)(1)(A)(i). He received a three-level reduction for
acceptance of responsibility. See USSG § 3E1.1(b). His total
offense level therefore was 21.
Espinosa-Martinez’s prior convictions resulted in
thirty-five criminal history points. Of these, only twenty-one
points were counted for the purpose of establishing his criminal
history category because USSG § 4A1.1(c) precluded the counting
of all points assigned to sentences of short duration. Two
points were added because he was on probation at the time he
committed the instant offense. See USSG § 4A1.1(d). One point
was added because he committed the subject offense less than two
2
years following his release from custody. See USSG § 4A1.1(e).
He had twenty-four total criminal history points, placing him in
criminal history category VI (thirteen or more criminal history
points).
His advisory Guidelines range was 77-96 months in
prison. The United States moved for an upward departure on the
ground that Espinosa-Martinez’s criminal history category
inadequately represented his criminal history and the likelihood
that he would commit other crimes. The district court agreed
with the United States and granted the motion. Using the
incremental approach, see United States v. Dalton, 477 F.3d 195,
199 (4th Cir. 2007), the court departed upward to offense level
24, for an advisory Guidelines range of 100-125 months.
After hearing from counsel and Espinosa-Martinez and
considering the 18 U.S.C. § 3553(a) (2006) factors, the court
sentenced him to 118 months in prison. In imposing sentence, the
court took note of his twenty-five year criminal history, which
included two previous federal convictions and two deportations,
as well as the number of criminal history points, both counted
and uncounted. The court expressed the need to protect the
public from further criminal activity.
3
II
We review a sentence for reasonableness, using the
deferential abuse of discretion standard. See Gall v. United
States, 128 S. Ct. 586, 597 (2007). We first consider whether
the district court committed any significant procedural errors.
United States v. Evans, 526 F.3d 155, 162 (4th Cir.), cert.
denied, 129 S. Ct. 476 (2008). If not, we then consider the
substantive reasonableness of the sentence, “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. While we may presume a sentence within the Guidelines
range to be reasonable, we may not presume that a sentence
outside that range is unreasonable. Id. Moreover, we must give
due deference to the district court’s decision that the
§ 3553(a) factors justify imposing a variant sentence and its
determination regarding the extent of any variance. Id.
The district court may depart upward from an advisory
Guidelines range “[i]f 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 under
§ 4A1.3 is warranted, the sentencing court may consider
uncounted prior sentences, USSG § 4A1.3(a)(2), as well as parole
4
and probation violations, United States v. Lawrence, 349 F.3d
724, 728 (4th Cir. 2003).
We conclude that Espinosa-Martinez’s sentence is
reasonable. In this regard, we note that the district court
properly calculated the Guidelines range, treated the Guidelines
as advisory, considered the applicable § 3553(a) factors, and
adequately explained its reasons for the fact and extent of the
departure. See Gall, 128 S. Ct. at 597; United States v.
Pauley, 511 F.3d 468, 473 (4th Cir. 2007).
III
We therefore affirm. * 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
*
To the extent that Espinosa-Martinez contends that his
criminal history was impermissibly double-counted, we reject
this claim. See United States v. Torres-Echavarria, 129 F.3d
692, 698-99 (2d Cir. 1997); United States v. Crawford, 18 F.3d
1173, 1179 (4th Cir. 1994).
5