UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4825
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CIPRIANO DIAZ-GALIANA, a/k/a Vincente Diaz-Rosas, a/k/a
Vincente Diaz Rosas, Vincente Diaz,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Dever, III,
Chief District Judge. (7:10-cr-00071-D-1)
Submitted: June 5, 2012 Decided: June 19, 2012
Before NIEMEYER, MOTZ, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
W. H. Paramore, III, W. H. PARAMORE, III, P.C., Jacksonville,
North Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Cipriano Diaz-Galiana appeals his 120-month sentence
following a guilty plea to illegal reentry by an aggravated
felon, in violation of 8 U.S.C. § 1326 (2006). On appeal, Diaz-
Galiana argues that the district court erred in upwardly
departing under the Sentencing Guidelines. Finding no
reversible error, we affirm.
Prior to sentencing, the presentence investigation
report (“PSR”) calculated Diaz-Galiana’s base offense level at
eight, pursuant to U.S. Sentencing Guidelines Manual (“USSG”) §
2L1.2 (2010), with a twelve-level enhancement for specific
offense characteristics, pursuant to USSG § 2L1.2(b)(1)(B), and
a three-level reduction for acceptance of responsibility,
pursuant to USSG § 3E1.1(b). Diaz-Galiana’s adjusted offense
level of seventeen, combined with a category IV criminal
history, yielded an advisory Guidelines range of thirty-seven to
forty-six months’ imprisonment. At sentencing, the district
court determined that the PSR incorrectly calculated Diaz-
Galiana’s criminal history category, reducing his criminal
history to a category III. Thus, Diaz-Galiana’s Guidelines
range became thirty to thirty-seven months in prison.
In addition, the district court found that Diaz-
Galiana’s advisory Guidelines range failed to adequately reflect
the nature and seriousness of his criminal history, or the
2
likelihood that he would commit future crimes. Pursuant to USSG
§ 4A1.3, the court increased Diaz-Galiana’s criminal history
category to VI and increased his offense level to twenty-one.
The court also found that Diaz-Galiana’s advisory Guidelines
range failed to take into account his dismissed and uncharged
conduct, further increasing his offense level to twenty-four
pursuant to USSG § 5K2.21, yielding an advisory range of 100 to
125 months’ imprisonment. The court sentenced Diaz-Galiana to
120 months in prison, and Diaz-Galiana appealed, arguing that
the court’s upward departure was excessive in light of the 18
U.S.C. § 3553(a) (2006) factors.
We review a sentence imposed by the district court
under a deferential abuse of discretion standard. Gall v.
United States, 552 U.S. 38, 46 (2007); United States v. Lynn,
592 F.3d 572, 578-79 (4th Cir. 2010). When reviewing a
departure, this court considers “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. Hernandez-
Villanueva, 473 F.3d 118, 123 (4th Cir. 2007) (citation
omitted).
Pursuant to USSG § 4A1.3(a)(1), a court may upwardly
depart from the Guidelines range if the court determines that
“the defendant’s criminal history category substantially under-
3
represents the seriousness of the defendant’s criminal history
or the likelihood that the defendant will commit other crimes.”
In making this determination, the court may consider prior
sentences not used in calculating the defendant’s criminal
history, as well as prior criminal conduct not resulting in a
criminal conviction. USSG § 4A1.3(a)(2). In addition, under
USSG § 5K2.21, a court may depart upward to “reflect the actual
seriousness of the offense based on conduct (1) underlying a
charge dismissed as part of a plea agreement or for any other
reason; and (2) that did not enter into the determination of the
applicable guideline range.”
We find that the district court did not abuse its
discretion in upwardly departing, as the record contains ample
evidence to support the court’s judgment. Diaz-Galiana’s
category III criminal history significantly underrepresented his
extensive criminal conduct, including uncounted convictions for
accessory after the fact to murder, drug trafficking, and
carrying a concealed weapon. Moreover, Diaz-Galiana’s five
prior convictions for illegally reentering the United States,
coupled with seven additional occasions resulting in Diaz-
Galiana’s voluntary removal or detainment, reveal a history of
recidivism unaccounted for in his advisory Guidelines range. In
addition, the court properly weighed the significance of the
dismissed charge against Diaz-Galiana, possession of a firearm
4
by an illegal alien, given that Diaz-Galiana was found in
possession of seven firearms and over 1,000 rounds of ammunition
at the time of his arrest.
Accordingly, we 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
5