UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5184
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
WALTER ENRIQUE MUNOZ-BARAHONA, a/k/a Oscar Torres-Hernandez,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Robert G. Doumar, Senior
District Judge. (2:09-cr-00017-RGD-FBS-1)
Submitted: July 14, 2010 Decided: July 28, 2010
Before TRAXLER, Chief Judge, and MOTZ and GREGORY, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
Richard J. Colgan, Assistant Federal Public Defender, Norfolk,
Virginia, for Appellant. Sherrie S. Capotosto, Assistant United
States Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Walter Enrique Munoz-Barahona, a Mexican citizen with a
history of entering the United States illegally, pled guilty to
again entering the United States illegally on January 7, 2008.
The district court sentenced him to 18 months in prison. Munoz-
Barahona appeals, challenging his sentence and requesting
expedited consideration of his appeal. We grant the motion for
expedited consideration and affirm.
I.
Munoz-Barahona illegally entered the United States on April
28, 2005; August 28, 2005; September 18, 2006; October 22, 2006;
February 26, 2007; March 5, 2007; April 6, 2007; June 1, 2007;
and January 7, 2008. On December 7, 2008, the police arrested
him for driving under the influence and engaging in a hit and
run. On February 4, 2009, a grand jury charged Munoz-Barahona
with entering the United States without permission after a
previous deportation, in violation of 8 U.S.C. § 1326(a) (2006).
He pled guilty. The statutory maximum for this crime is 2 years
in prison. Id.
The probation officer found that Munoz-Barahona had a total
offense level of 6 and a criminal history category of IV, which
corresponded to an advisory United States Sentencing Guidelines
(“U.S.S.G.” or “Guidelines”) sentence of 6-12 months. The
2
probation officer did not note any factors warranting departure,
and so recommended a sentence within this range. Munoz-Barahona
did not object to the probation officer’s recommendation, and
requested a sentence of time served. The Government expressed
its belief that the Guidelines sentence would be reasonable.
The district court opened the sentencing hearing with the
following statement:
So let me be very frank with you, Mr. Colgan
[defense counsel], so you can address this argument.
It appears that Mr. Munoz-Barahona has illegally
entered this country nine times. He’s reentered this
country sometimes mere days after being arrested and
deported. He’s never been subject to a lengthy period
of incarceration, but he has certainly flouted our
immigration laws.
. . . .
Accordingly, I am contemplating increasing by two
levels the defendant’s criminal history category,
because I don’t think it sufficiently reflects his
lack of caring of our immigration laws. . . .
. . . .
I just want you to know that now. I don’t have
to give notice, like we did when the sentencing
guidelines were mandatory, but I do want you to be
aware that that’s what I’m thinking so you can address
those issues, if you can.
Defense counsel did not object to the lack of prior notice of an
increased sentence and instead proceeded to address the district
court’s concerns.
After hearing defense counsel’s arguments, the district
court again expressed its desire to fashion a sentence that
would deter Munoz-Barahona from future criminal conduct and
protect the public. The court increased Munoz-Barahona’s
3
criminal history category from category IV to category VI, which
corresponded to a Guidelines sentence of 12-18 months, and then
sentenced him to 18 months’ imprisonment.
On appeal, Munoz-Barahona challenges his sentence as
procedurally and substantively unreasonable.
II.
Munoz-Barahona offers two arguments as to why the district
court procedurally erred in imposing his sentence. First, he
contends that “the district court imposed a criminal history
departure without giving the requisite notice of its intent to
depart.” Br. of Appellant at 6. Second, he maintains that the
district court “compounded the error by jumping directly from
criminal history category IV to category VI without considering
any intermediate levels of punishment.” Id. We consider each
argument in turn.
A.
Federal Rule of Criminal Procedure 32(h) provides that
“[b]efore the court may depart from the applicable sentencing
guidelines range on a ground not identified for departure either
in the presentence report or in a party’s prehearing submission,
the court must give the parties reasonable notice that it is
contemplating such a departure.” See also U.S.S.G. § 6A1.4.
Munoz-Barahona and the Government disagree as to whether the
4
district court departed from the Guidelines range or imposed a
variance. If the district court did the latter, it had no
obligation to notify the parties of its intention to do so. See
Irizarry v. United States, 128 S. Ct. 2198, 2202-04 (2008).
Assuming for the sake of argument that the district court
erred by departing upward without giving notice, Munoz-Barahona
nevertheless cannot prevail on this argument because he did not
object to the lack of notice at sentencing, and he has not
demonstrated the prejudice necessary for a showing of plain
error. See United States v. Lynn, 592 F.3d 572, 577 (4th Cir.
2010) (applying plain-error review to “unpreserved claims of
procedural sentencing error” and noting that plain error
requires a showing that “an error (1) was made, (2) is
plain . . . , and (3) affects substantial rights”). The
district court informed defense counsel of its inclination to
depart at the start of the sentencing proceedings, and gave
defense counsel ample opportunity to address the issue. At
sentencing, Munoz-Barahona did not complain of any lack of
notice, but rather simply argued the merits. On appeal, Munoz-
Barahona does not address the plain-error standard, and offers
no explanation as to how the district court’s asserted notice
error prejudiced him.
5
B.
Munoz-Barahona’s argument regarding incremental departure
also has no merit. He cites United States v. Dalton, 477 F.3d
195 (4th Cir. 2007), for the proposition that a district court
may depart to “successively higher [criminal history] categories
only upon finding that the prior category does not provide a
sentence that adequately reflects the seriousness of the
defendant’s criminal conduct.” Id. at 199 (internal quotation
marks omitted). However, this requirement applies only where
the district court departs upward from criminal history category
VI. See id.; U.S.S.G. § 4A1.3(a)(4)(B). In this case, the
district court departed upward from category IV to category VI.
While the court did not explain in detail why category VI better
reflected Munoz-Barahona’s criminal history, it adequately drew
from the relevant 18 U.S.C. § 3553(a) sentencing factors to
explain the sentence it imposed.
III.
Munoz-Barahona’s argument that his 18-month sentence was
substantively unreasonable also fails. The increased sentence
imposed by the district court -- from the suggested Guidelines
maximum of 12 months to 18 months –- is significant. However,
given Munoz-Barahona’s extensive history of entering the country
illegally, and his drug-and-alcohol-related infractions while in
6
the country, we cannot conclude that the sentence imposed was
substantively unreasonable.
IV.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.
7