[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DECEMBER 15, 2006
No. 06-10526 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-14066-CR-KMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS RODRIGUEZ-ESTRADA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(December 15, 2006)
Before ANDERSON, BIRCH and DUBINA, Circuit Judges.
PER CURIAM:
Appellant Carlos Rodriguez-Estrada appeals his 72-month sentence for
illegal reentry by a felon, in violation of 8 U.S.C. § 1326(a), (b)(1). On appeal,
Rodriguez-Estrada argues that the district court imposed an unreasonable sentence
when it sentenced him above the applicable guideline range based on his extensive
criminal history. Rodriguez-Estrada argues that (1) the district court erred by
failing to conduct the criminal history departure analysis required under U.S.S.G. §
4A1.3 before imposing his sentence outside the guideline range; (2) the district
court should have examined “the next criminal history category” to determine if his
closely resembled defendants in that category; and (3) the district court ignored §
4A1.3 and, without proper analysis, sentenced him to a term of imprisonment that
was 260% higher than the advisory guideline.
We review the district court’s final sentence for reasonableness. United
States v. Winingear, 422 F.3d 1241, 1244 (11th Cir. 2005). Post-Booker, district
courts are still required to consider the federal sentencing guidelines. United States
v. Jordi, 418 F.3d 1212, 1215 (11th Cir. 2005), cert. denied, 126 S. Ct. 812 (2005).
Section 4A1.3 of the guidelines allows a sentencing court to upwardly depart when
it believes that a defendant’s criminal history category substantially under-
represents the seriousness of the defendant’s criminal history or the likelihood that
the defendant would commit other crimes. U.S.S.G. § 4A1.3. However, after
accurately calculating the guideline range, a sentencing court may, post-Booker,
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impose a more severe or more lenient sentence. Winingear, 422 F.3d at 1244-45.
In imposing its sentence, the sentencing court considers the factors listed in
18 U.S.C. § 3553(a). United States v. Scott, 426 F.3d 1324, 1328-1329 (11th Cir.
2005). These factors include inter alia: (1) the history and characteristics of the
defendant; (2) the need for the sentence imposed to reflect the seriousness of the
offense, promote respect for law, and provide just punishment for the offense; (3)
the need for the sentence to afford adequate deterrence to criminal conduct; and (4)
the need for the sentence to protect the public from further crimes of the defendant.
18 U.S.C. § 3553(a). The statutory maximum under 8 U.S.C. § 1326 for an alien
who had been removed previously for a felony is 10 years imprisonment. 8 U.S.C.
§ 1326(a), (b)(1).
After reviewing the record, we conclude that the sentence imposed in the
instant case was reasonable. Although Rodriguez-Estrada argues, in essence, that
the district court’s sentencing decision was a disguised upward departure under
§ 4A1.3, a review of the sentencing transcript reveals that the district court did not
impose an upward departure under the guidelines. Moreover, the district court
appropriately considered the factors listed in § 3553(a) and imposed a reasonable
sentence. The court=s deliberations reflect consideration of: (1) the nature and
circumstances of the offense; (2) the need for the sentence imposed to reflect the
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seriousness of the offense and to promote respect for the law; (3) the need for the
sentence to afford adequate deterrence and protect the public from the defendant’s
further crimes; and (4) the history and characteristics of the defendant. Thus,
because the imposition of Rodriguez-Estrada’s 72-month sentence reflected
consideration of several of the relevant factors, including the guidelines, was
supported by the record, and fell below the 120 month statutory maximum, his
sentence outside the guidelines range is reasonable. Accordingly, we affirm his
sentence.
AFFIRMED.
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