UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4537
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RINALDY TURCIOS-FLORES,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:09-cr-00010-REP-1)
Submitted: February 4, 2010 Decided: March 4, 2010
Before MICHAEL, SHEDD, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Mary E. Maguire,
Assistant Federal Public Defender, Patrick L. Bryant, Research
and Writing Attorney, Richmond, Virginia, for Appellant. Neil H.
MacBride, United States Attorney, S. David Schiller, Assistant
United States Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rinaldy Turcios-Flores pled guilty, pursuant to a plea
agreement, to one count of illegal reentry after being convicted
of an aggravated felony, in violation of 8 U.S.C. § 1326(a),
(b)(2) (2006). The district court departed upward pursuant to
U.S. Sentencing Guidelines Manual (“USSG”) § 4A1.3(a), p.s.
(2007), imposed an upward variance, and sentenced Turcios-Flores
to sixty months in prison. On appeal, Turcios-Flores argues
that the district court erred in imposing his sentence. Finding
no error, we affirm.
When determining a sentence, the district court must
calculate the appropriate advisory guidelines range and consider
it in conjunction with the factors set forth in 18 U.S.C.
§ 3553(a) (2006). Gall v. United States, 552 U.S. 38, 51
(2007). Appellate review of a sentence, “whether inside, just
outside, or significantly outside the [g]uidelines range,” is
for abuse of discretion. Id. at 41. If the district court
determines that a sentence outside the guidelines range is
appropriate, the reviewing court “should first look to whether a
departure is appropriate based on the [g]uidelines Manual or
relevant case law.” United States v. Moreland, 437 F.3d 424,
432 (4th Cir. 2006).
Turcios-Flores challenges the district court’s
decision to impose an upward departure. A district court may
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depart upward from the guidelines range under USSG § 4A1.3(a),
p.s., 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 crimes.” USSG § 4A1.3(a)(1), p.s.;
see United States v. Whorley, 550 F.3d 326, 341 (4th Cir. 2008)
(noting that under-representative criminal history category is
an encouraged basis for departure), cert. denied, ___U.S.___, 78
U.S.L.W. 3392 (U.S. Jan. 11, 2010) (No. 09-6521).
To determine whether a departure sentence is
appropriate in such circumstances, the guidelines explicitly
state that a court may consider prior sentences not used in the
criminal history calculation, prior sentences of “substantially
more than one year” for independent crimes committed at
different times, prior similar misconduct resolved by civil or
administrative adjudication, charges pending at the time of the
offense, or prior similar conduct that did not result in a
conviction. See USSG § 4A1.3(a)(2), p.s.
Here, the record supports the district court’s
conclusion that Turcios-Flores’ criminal history category failed
to adequately reflect the seriousness of his criminal history
and the likelihood of his recidivism. Turcios-Flores had
multiple unscored convictions not included in calculating his
criminal history category, a lengthy history of lenient
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sentences followed by recidivism, and a number of probation and
supervised release violations. Thus, the district court did not
err in imposing the departure sentence.
Turcios-Flores also challenges the district court’s
decision to impose an upward variance. When reviewing the
substantive reasonableness of an upward variance, the court
“must give due deference to the district court’s decision that
the § 3553(a) [(2006)] factors, on a whole, justify the extent
of the variance.” Gall, 552 U.S. at 51. “Even if we would have
reached a different sentencing result on our own, this fact
alone is ‘insufficient to justify reversal of the district
court.’” United States v. Pauley, 511 F.3d 468, 474 (4th Cir.
2007) (quoting Gall, 552 U.S. at 51). Under 18 U.S.C.
§ 3553(a), the district court should consider the nature and
circumstances of the offense and the history and characteristics
of the defendant. The court should impose a sentence that
reflects the seriousness of the offense, and the need to promote
respect for the law, to provide just punishment, to afford
adequate deterrence, to protect the public from further crimes,
and to provide the defendant with adequate rehabilitation or
medical treatment.
We find that, in imposing a variance sentence, the
district court provided an adequate individualized assessment of
the § 3553 sentencing factors in relation to Turcios-Flores and
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his criminal conduct. The court took into consideration
Turcios-Flores’ prior criminal conduct, which demonstrated a
lack of respect for the law, as well as the fact he had received
some punishment for conduct related to the current conviction.
Accordingly, we find the district court did not abuse its
discretion.
Finally, Turcios-Flores argues that it was
unreasonable for the district court to run his sixty-month
sentence consecutive to his other terms of imprisonment. We
find no error in this decision. See USSG § 5G1.3(c) & cmt.
n.3(C).
We conclude that the district court did not abuse its
discretion in imposing the sixty-month sentence. We therefore
affirm the district court’s judgment. 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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