UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4799
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JESUS SANTIAGO, a/k/a Natalio Reyes, a/k/a Lorenzo Javier
Bautista,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:11-cr-00027-BR-1)
Submitted: April 24, 2012 Decided: May 7, 2012
Before NIEMEYER and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, Yvonne V. Watford-McKinney, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jesus Santiago appeals his sentence of fifty-seven
months’ imprisonment after pleading guilty to illegal reentry,
in violation of 8 U.S.C. § 1326(a), (b)(1) (2006). Santiago
argues that his sentence is procedurally unreasonable because
the district court failed to address his arguments for a lesser
sentence. He further argues that his sentence is substantively
unreasonable because the district court’s decision to impose an
upward departure was unwarranted. The Government responds that
the district court sufficiently addressed Santiago’s arguments
and that the sentence is substantively reasonable.
This court reviews a sentence for procedural and
substantive reasonableness using the abuse-of-discretion
standard. Gall v. United States, 552 U.S. 38, 51 (2007); United
States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010). The court
first determines whether the sentence is procedurally
reasonable, including whether the district court analyzed the
arguments presented by the parties and sufficiently explained
the selected sentence. Lynn, 592 F.3d at 575-76; United
States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009). The court
then reviews for substantive reasonableness and will affirm
unless the sentence is an abuse of discretion. A sentence
outside of the Guidelines range is not presumed unreasonable.
See Gall, 552 U.S. at 51. “When reviewing a departure, we
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consider whether the sentencing court acted reasonably both with
respect to its decision to impose such a sentence and with
respect to the extent of the divergence from the sentencing
range.” United States v. McNeill, 598 F.3d 161, 166 (4th Cir.
2010), aff’d on other grounds, 131 S. Ct. 2218 (2011).
At Santiago’s sentencing hearing, the Government moved
for an upward departure. Santiago argued that his criminal
history was adequately accounted for by the Guidelines and that
his conduct, characteristics, and prior record did not warrant
imposition of an upward departure. The district court
determined that Santiago’s criminal history category of IV
significantly under-represented the seriousness of his criminal
history and the likelihood that he would commit future crimes.
The court thus imposed an upward departure to a criminal history
category of V and a Guidelines range of forty-six to fifty-seven
months’ imprisonment. The court sentenced Santiago to fifty-
seven months’ imprisonment.
Initially, we conclude that Santiago’s sentence is
procedurally reasonable. The district court addressed
Santiago’s uncontested history of removals and voluntary
departure, Santiago’s characteristics, and the nature of
Santiago’s criminal history. The district court’s explanation
of the selected sentence sufficiently addressed Santiago’s
arguments for a lesser sentence. Further, the district court
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did not err in concluding that an upward departure was
appropriate, and it properly calculated such departure under
U.S. Sentencing Guidelines Manual § 4A1.3 (2010). The sentence
is thus procedurally reasonable.
We next conclude that Santiago’s sentence is
substantively reasonable. The district court determined that
Santiago’s history of illegally entering the United States, as
well as the nature of his prior conduct and criminal history,
justified an upward departure of one criminal history category.
The extent of the sentencing departure — eleven months — is not
excessive or otherwise in error. The sentence is thus
substantively reasonable. Because the district court had
discretion to impose an upward departure, and because the
departure is substantively reasonable, the imposition of a
fifty-seven month sentence in this case was not an abuse of
discretion.
Accordingly, we affirm the judgment of 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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