United States v. Fidel Vidal ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4894
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FIDEL LUIS VIDAL,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Glen E. Conrad, Chief
District Judge. (5:08-cr-00037-gec-mfu-1)
Submitted: July 7, 2011 Decided: September 12, 2011
Before MOTZ, SHEDD, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Larry W. Shelton, Federal Public Defender, Roanoke, Virginia,
Frederick T. Heblich, Jr., Assistant Federal Public Defender,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charlottesville,
Virginia, Christine Madeleine Lee, Research and Writing
Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Roanoke,
Virginia, for Appellant. Timothy J. Heaphy, United States
Attorney, Roanoke, Virginia, Jeb T. Terrien, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Harrisonburg, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Fidel Luis Vidal pled guilty to one count of being an alien
who re-entered the United States without permission after having
been deported. The district court sentenced him to 52 months’
imprisonment. This constituted a two-level departure from his
guideline range of 37 to 46 months. Vidal appeals, asserting
that the sentence imposed, which was only six months above his
guideline range, was procedurally unreasonable. 1 For the
following reasons, we disagree and so affirm.
We note at the outset that we review a sentence’s
reasonableness only under the deferential abuse of discretion
standard. Gall v. United States, 552 U.S. 38, 51 (2007).
Initial review is for “significant procedural error” which
includes: (1) “failing to calculate (or improperly calculating)
the Guidelines range,” (2) “treating the Guidelines as
mandatory,” (3) “failing to consider the [18 U.S.C.] § 3553(a)
factors,” (4) “selecting a sentence based on clearly erroneous
facts,” and (5) “failing to explain the chosen sentence --
including an explanation for any deviation from the Guidelines
range.” Id.
1
Vidal also contends that his sentence is substantively
unreasonable but offers no argument, independent of his
procedural unreasonableness claims, in support of that argument.
2
Before the district court, Vidal conceded that the court
had properly calculated the Guidelines range and that no clearly
erroneous facts supported that calculation. The record plainly
reflects that the district court did not treat the Guidelines as
mandatory or fail to consider the § 3553(a) factors. 2 Vidal’s
sole contention is that the district court’s explanation of its
sentence was inadequate.
The district court explained that it found a six month
departure from the Guidelines range warranted because, although
given “very clear and distinct warning as to what would happen
if he continue[d] to disobey federal law” by entering the
country illegally, Vidal continued to do so. At some length,
Vidal points out that two of his (five) illegal entries occurred
while he was a minor and so do not constitute “prior similar
adult criminal conduct not resulting in a criminal conviction,”
a category of conduct which “may” provide a basis for an upward
departure. See U.S.S.G. § 4A1.3(a)(2)(E), 4A1.3(a)(2) (emphasis
added). Of course this is correct, but no Guideline prohibits
reliance on prior similar juvenile conduct not resulting in a
criminal conviction. Cf. id. § 4A1.3(a)(3).
2
Although the district court did not expressly invoke
§ 3553(a), it specifically alluded to and quoted the § 3553(a)
factors.
3
Moreover, even if the Guidelines do not sanction a
departure on that basis, Vidal’s challenge fails. This is so
because “although adherence to the advisory Guidelines departure
provisions provides one way for a district court to fashion a
reasonable sentence outside the Guidelines range, “it is not the
only way.” United States v. Evans, 526 F.3d 155, 164 (4th Cir.
2008) (emphasis in original). “Rather, after calculating the
correct Guidelines range,” as the district court did here, it
“may base its sentence on the Guidelines departure provisions or
on other factors so long as it provides adequate justification
for the deviation.” Id.That is precisely what the district court did here. The
court justified its sentence on the rationale that although
Vidal received “very clear and distinct warning[s]” as to the
illegality of his unauthorized entry into the United States, he
continued to enter illegally. The court believed that a six
month departure from the Guideline range was necessary to
“deter” Vidal from committing like conduct in the future. See
§ 3553(a). Given our deferential standard of review, we cannot
hold this rationale unreasonable. 3
3
The following exchange between Vidal and the district
court prior to the imposition of sentence renders this
conclusion inevitable:
(Continued)
4
Thus, we must reject Vidal’s challenge to the
reasonableness of the sentence. 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
The Court: Would you have thought long and hard about
coming into the United States this last time if you
had understood that you could receive a period of
incarceration of five or six or seven years or
something of this sort, if you were caught?
The Defendant: Perhaps I wouldn’t have come.
5