UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5151
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SEVERINO LOYA-SANDOVAL, a/k/a Seferino Sandoval-Loya, a/k/a
Sevarino Loya,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley,
Jr., Senior District Judge. (1:08-cr-00071-NCT-1)
Submitted: May 28, 2010 Decided: June 18, 2010
Before WILKINSON, GREGORY, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Benjamin Porter, MORROW ALEXANDER PORTER & WHITLEY, PLLC,
Winston-Salem, North Carolina, for Appellant. Anna Mills
Wagoner, United States Attorney, Randall S. Galyon, Assistant
United States Attorney, Aindrea Alderson, Third-Year Law
Student, Winston-Salem, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Severino Loya-Sandoval pled guilty to illegal reentry
of a deported alien after conviction of an aggravated felony, 8
U.S.C. § 1326(a), (b)(2) (2006), and was sentenced to a term of
eighty-six months imprisonment. Loya-Sandoval appeals his
sentence, arguing that the district court abused its discretion
by departing from criminal history category IV to category VI
under U.S. Sentencing Guidelines Manual § 4A1.3(a), p.s. (2008),
and also in departing upward by two offense levels on the ground
that Loya-Sandoval reentered for a criminal purpose, USSG
§ 5K2.9, p.s. We affirm.
Loya-Sandoval was convicted of heroin trafficking in
1992, sentenced to 180 days imprisonment, and deported. He was
deported again in 1997 after a conviction for felony possession
of cocaine. Loya-Sandoval was arrested in October 2006 during a
state drug investigation in North Carolina. The charge against
him was dismissed when his co-defendant, who had initially
implicated him, recanted and refused to testify against him.
After Loya-Sandoval’s guilty plea to unlawful reentry, his
recommended advisory guideline range was 37-46 months. At his
sentencing hearing, the government presented evidence of his
involvement in cocaine trafficking in October 2006. The
district court departed upward, finding first that Loya-
Sandoval’s criminal history score did not adequately reflect his
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past criminal conduct. The court determined the extent of the
departure by first noting that Loya-Sandoval did not receive any
criminal history points for his 1992 sentence for heroin
trafficking. * The court also assessed one hypothetical criminal
history point for each of Loya-Sandoval’s two prior illegal
reentries, for which he had not been prosecuted. An additional
four points would have given Loya-Sandoval a total of 13
criminal history points and placed him in category VI. The
court therefore departed upward to category VI pursuant to
§ 4A1.3. The court found that category V was inadequate.
The court also determined that there was compelling
evidence that Loya-Sandoval was involved in a drug offense when
he was arrested in October 2006. The court departed upward by
four offense levels pursuant to USSG § 5K2.0 to account for the
fact that Loya-Sandoval had reentered the country “for the
purpose of facilitating drug activity.” The new guideline range
that resulted from the departures was 77-96 months.
A sentence is reviewed for reasonableness under an
abuse of discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007). This review requires consideration of both the
procedural and substantive reasonableness of a sentence. Id.;
*
The 180-day sentence was outside the applicable time
period. USSG § 4A1.2(e)(3). Otherwise, two points would have
been awarded. USSG § 4A1.1(b).
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see also United States v. Lynn, 592 F.3d 572, 575 (4th Cir.
2010).
Loya-Sandoval argues that the district court’s sealed
statement of reasons states erroneously that he had two prior
uncounted drug convictions. He is correct that only one of his
prior drug sentences was uncounted. However, the court’s
written statement of reasons does not accurately reflect its
basis for the criminal history departure, which consisted of one
old, uncounted prior sentence for serious criminal conduct, see
USSG § 4A1.2, cmt. n.8 (court “may consider [such] information
in determining whether an upward departure is warranted under
§ 4A1.3”), and two instances of “deportation violation” where
Loya-Sandoval unlawfully reentered the country after he was
convicted of a crime and deported. Loya-Sandoval does not
dispute that “prior similar adult conduct not resulting in a
criminal conviction” is an approved basis for departure. See
USSG § 4A1.3(a)(2)(E). When there is a conflict between the
orally pronounced sentence and the written judgment, the oral
sentence controls. United States v. Osborne, 345 F.3d 281, 283
n.1 (4th Cir. 2003) (citing United States v. Morse, 344 F.2d 27,
29 n.1 (4th Cir. 1965)). In this case, the court’s valid orally
stated reason for the departure also controls.
Loya-Sandoval further contends that his 1992 drug
sentence should not have been considered because it was the
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basis for the 12-level enhancement he received under
§ 2L1.2(b)(1)(B), and thus had already been taken into account
in the determination of his guideline range. The 1992 sentence
did not contribute to Loya-Sandoval’s criminal history score,
however. Therefore, the district court did not err in deciding
that category IV did not adequately reflect the seriousness of
his criminal history.
Loya-Sandoval maintains that the evidence presented by
the government at sentencing did not establish a connection
between his illegal reentry and his involvement in the drug
activity for which he was arrested in October 2006. However,
the district court noted that, each time Loya-Sandoval returned
after being deported, he was apprehended because he committed a
crime, usually involving drugs. Although Loya-Sandoval did not
receive a conviction for a drug offense after each of his
unlawful reentries, we are satisfied that the district court’s
description of Loya-Sandoval’s pattern of deportation, illegal
reentry, and continued involvement with drug activity is
adequately supported by the record. Moreover, the government’s
evidence of Loya-Sandoval’s involvement with drug trafficking in
October 2006 was compelling.
We conclude that Loya-Sandoval has not shown that the
district court’s decision to depart lacked a sufficient factual
basis or was based on a misapplication of § 4A1.3. We further
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conclude that the sentence is otherwise reasonable. 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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