UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4785
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID AMEZQUITA-FRANCO,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:12-cr-00052-JRS-1)
Submitted: March 29, 2013 Decided: May 1, 2013
Before DAVIS, KEENAN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Frances H.
Pratt, Valencia D. Roberts, Assistant Federal Public Defenders,
Nicholas J. Xenakis, Research & Writing Attorney, Richmond,
Virginia, for Appellant. Neil H. MacBride, United States
Attorney, Erik S. Siebert, Assistant United States Attorney,
Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Amezquita-Franco, a native and citizen of
Guatemala, pled guilty pursuant to a written plea agreement to
one count of illegal reentry of a deported alien after being
convicted of an aggravated felony in violation of 8 U.S.C.
§§ 1326(a), (b)(2) (2006). The court imposed a variance
sentence of eighty-seven months of imprisonment. Amezquita-
Franco appeals, raising two issues: (1) whether his sentence was
unreasonable; and (2) whether the district court plainly erred
by imposing a three-year term of supervised release when he
likely will be deported. For the reasons that follow, we
affirm.
We review a sentence imposed by a district court for
reasonableness, applying a deferential abuse-of-discretion
standard. United States v. Rivera–Santana, 668 F.3d 95, 100
(4th Cir.), cert. denied, 133 S. Ct. 274 (2012). The first step
in our review requires us to ensure that the district court did
not commit significant procedural error, such as improperly
calculating the Sentencing Guidelines range, failing to consider
the factors under 18 U.S.C. § 3553(a) (2006), or failing to
adequately explain the sentence. United States v. Carter, 564
F.3d 325, 328 (4th Cir. 2009). We then review the sentence for
substantive reasonableness, taking into account the totality of
2
the circumstances. United States v. Strieper, 666 F.3d 288, 295
(4th Cir. 2012).
Amezquita-Franco contends that the court erred
procedurally in departing upward based on an inadequate criminal
history category because the court failed to use an incremental
approach as set forth in United States v. Rusher, 966 F.2d 868,
884-85 (4th Cir. 1992), and jumped directly from a category III
to category V criminal history. A sentencing court, however, is
under no obligation to “incant the specific language used in the
guidelines, or go through a ritualistic exercise in which it
mechanically discusses each criminal history category or offense
level it rejects en route to the category or offense level that
it selects.” Rivera–Santana, 668 F.3d at 104 (quoting United
States v. Dalton, 477 F.3d 195, 199 (4th Cir. 2007)). Further,
even if the sentencing court “failed to utilize a proper
incremental analysis,” any procedural error may be harmless if
“the upward variance based on the § 3553(a) factors justified
the sentence imposed.” Id. at 104.
Here, the district expressly found that Amezquita-
Franco’s criminal history was under-represented and that
category III and IV were insufficient to account for criminal
activity that included sexual crimes against a girl younger than
fourteen years of age. Moreover, Amezquita-Franco had illegally
reentered the United States on at least nine occasions, and had
3
convictions for driving while impaired and other traffic
infractions. The district court adequately explained its
sentence by reference to the 18 U.S.C. § 3553(a) factors, which
the court expressly considered. United States v. Grubbs, 585
F.3d 793, 804 (4th Cir. 2009). The court noted that a longer
sentence was needed for deterrence, for a just punishment, to
protect the community, and to promote respect for the law. The
court found that a sentence within the 70-87 month range, based
on Amezquita-Franco’s total offense level of 21 and his
increased criminal history of V, was adequate but not greater
than necessary to accomplish the goals of sentencing set out in
§ 3553(a).
Amezquita-Franco next argues that his sentence was
substantively unreasonable because his advisory sentencing range
as calculated in the presentence report was 46-57 months of
imprisonment. We review the substantive reasonableness of the
sentence under the totality of the circumstances. Strieper, 666
F.3d at 295. A sentencing court must “impose a sentence
sufficient, but not greater than necessary, to comply with the
purposes set forth in [§ 3553(a)(2)].” 18 U.S.C. § 3553(a). In
determining whether a variance sentence is reasonable, we must
consider whether the degree of variance is supported by the
court’s justification, with a larger variance requiring more
substantial justification. United States v. Diosdado-Star, 630
4
F.3d 359, 366 (4th Cir. 2011). We will, however, affirm if “the
§ 3553(a) factors, on the whole, justified the sentence”
imposed. Id. at 367 (internal quotation marks omitted). Even
if we would have reached a different sentencing result on our
own, this fact alone is insufficient to justify reversal of the
district court. United States v. Pauley, 511 F.3d 468, 474 (4th
Cir. 2007).
Here, the district court adequately explained its
variance sentence and justified the sentence imposed.
Certainly, given the high number of deportations, the
seriousness of the offenses against the minor, and the driving
while impaired and other traffic offenses guided the court’s
decision. The district court considered arguments from the
parties, listened to Amezquita-Franco, and expressly explained
its above Guidelines range sentence, specifically addressing
various § 3553(a) factors. Under these circumstances, we find
that the sentence was substantively reasonable.
Next, Amezquita-Franco argues that the district court
erred by imposing a three-year term of supervised release.
Amezquita-Franco concedes that the standard of review for this
issue is plain error, as he is raising this issue for the first
time on appeal. United States v. Maxwell, 285 F.3d 336, 339
(4th Cir. 2002) (providing review standard for plain error).
The Guidelines normally counsel against imposing a term of
5
supervised release for someone who is a deportable alien. See
U.S. Sentencing Guidelines Manual (“USSG”) § 5D1.1(c) (2011).
Nonetheless, courts are encouraged to consider imposing a term
of supervised release on a deportable alien if the court
determines that such an imposition would provide an added
measure of deterrence and protection based on the facts and
circumstances of a particular case. See USSG § 5D1.1 cmt. n.5.
Here, the court was expressly concerned about deterrence and
protection, given Amezquita-Franco’s repeated reentries into
this country and his sexual crimes against a person under the
age of fourteen. Thus, we conclude that the imposition of a
term of supervised release was not plain error.
Accordingly, we affirm Amezquita-Franco’s sentence.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
6