United States v. Luis Vasquez-Vega ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4849
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LUIS MANUEL VASQUEZ-VEGA,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (5:13-cr-00062-FL-1)
Submitted: May 30, 2014 Decided: June 11, 2014
Before KEENAN, WYNN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Eric J. Brignac,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, Kristine L. Fritz, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Luis Manuel Vasquez-Vega appeals the thirty-month
sentence imposed following his guilty plea to illegal reentry by
a felon, in violation of 8 U.S.C. § 1326(a), (b)(1) (2012). On
appeal, Vasquez-Vega challenges the court’s decision to depart
upward under U.S. Sentencing Guidelines Manual (“USSG”) § 4A1.3,
p.s. (2012), after concluding that Vasquez-Vega’s criminal
history category underrepresented the seriousness of his
criminal history and his likelihood of recidivism. For the
reasons that follow, we affirm.
We review a sentence for reasonableness, applying a
“deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 52 (2007). We first review the sentence
for “significant procedural error,” including improper
calculation of the Guidelines range, insufficient consideration
of the 18 U.S.C. § 3553(a) (2012) factors, reliance on clearly
erroneous facts, and inadequate explanation of the sentence
imposed. Id. at 51; see United States v. Lynn, 592 F.3d 572,
575 (4th Cir. 2010). If we find the sentence procedurally
reasonable, we also must examine its substantive reasonableness
under the totality of the circumstances. Lynn, 592 F.3d at 578.
The sentence imposed must be “sufficient, but not greater than
necessary, to comply with the purposes [of sentencing].” 18
U.S.C. § 3553(a).
2
In reviewing a sentencing court’s departure from the
Guidelines range, we 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) (internal quotation marks omitted).
“[A]n appellate court must defer to the trial court and can
reverse a sentence only if it is unreasonable, even if the
sentence would not have been the choice of the appellate court.”
United States v. Evans, 526 F.3d 155, 160 (4th Cir. 2008)
(emphasis omitted). Nevertheless, “[t]he farther the court
diverges from the advisory guideline range,” the more we must
“carefully scrutinize the reasoning offered by the district
court in support of the sentence.” United States v. Hampton,
441 F.3d 284, 288 (4th Cir. 2006) (internal quotation marks
omitted).
A sentencing court may depart upward “[i]f reliable
information indicates that the defendant’s criminal history
category substantially underrepresents the seriousness of the
defendant’s criminal history or the likelihood that the
defendant will commit other crimes.” USSG § 4A1.3(a)(1), p.s.
In making this determination, the court may rely on such
information as prior sentences not used in the defendant’s
criminal history calculation and “[p]rior similar adult criminal
3
conduct not resulting in a criminal conviction.” USSG
§ 4A1.3(a)(2)(A), (E), p.s. In determining the extent of the
departure, the sentencing court is to apply an incremental
approach to the Guidelines, moving to successively higher
criminal history categories after finding the prior category
inadequate, until it reaches the criminal history category that
most closely resembles the defendant’s criminal history or
likelihood of recidivism. See USSG § 4A1.3(a)(4)(B), p.s.;
United States v. Dalton, 477 F.3d 195, 199 (4th Cir. 2007).
We find no abuse of discretion in either the fact or
extent of the departure imposed by the court. Vasquez-Vega had
five prior convictions for illegal entry, only three of which
were assigned criminal history points. The presentence report
(“PSR”) also described Vasquez-Vega’s extensive history of
illegal reentry, reaching back nearly twenty years. He admitted
crossing the border illegally on more than seventy occasions
between 1997 and 2010; thirty crossings were documented through
contact with Immigration and Customs Enforcement (“ICE”) between
1996 and 1999. Because Vasquez-Vega did not challenge this
information, the court was entitled to rely on it. See United
States v. Randall, 171 F.3d 195, 210-11 (4th Cir. 1999) (noting
defendant has burden to establish facts in PSR are incorrect).
4
The court also concluded that Vasquez-Vega’s criminal
history score did not reflect his work as a coyote. *
Vasquez-Vega argues that the record provides insufficient
evidence to support this finding. However, we conclude the
district court did not clearly err in finding that the sheer
number of otherwise unexplained crossings to which Vasquez-Vega
admitted, coupled with several recent illegal reentry
convictions, bolstered the testimony of an ICE agent on the
matter and provided sufficient evidence to support the court’s
finding.
Based on Vasquez-Vega’s pattern of frequent illegal
entry, which was undeterred by five custodial sentences between
1999 and 2011, and the court’s finding regarding the purpose of
his illegal entry, we conclude the court was amply justified in
finding Vasquez-Vega’s criminal history score of IV inadequate.
Contrary to Vasquez-Vega’s assertions on appeal, neither the
fact that his prior sentences were lenient, nor the fact that
his prior criminal conduct comprised nonviolent immigration
offenses, required the court to impose a within-Guidelines
sentence. See United States v. Zelaya-Rosales, 707 F.3d 542,
546 (5th Cir. 2013); United States v. Mejida-Perez, 635 F.3d
*
“‘[C]oyote’ is the term for those who facilitate unlawful
entry from Mexico.” United States v. Rodriguez, 587 F.3d 573,
575 n.1 (2d Cir. 2009).
5
351, 353 (8th Cir. 2011). Thus, we conclude the court did not
abuse its discretion in finding a USSG § 4A1.3 departure
warranted.
Turning to the length of the departure, we find the
sentence both procedurally and substantively reasonable. The
court followed the necessary procedures in imposing the
departure, providing specific reasons for departing and properly
applying an incremental approach when determining the length of
the sentence. See Dalton, 477 F.3d at 199. The district court
also appropriately applied the § 3553(a) factors when selecting
the length of the sentence. The court properly concluded that
Vasquez-Vega’s flagrant recidivism established a significant
need to promote respect for the law, to deter further criminal
conduct, and to protect the public from further crime. See 18
U.S.C. § 3553(a)(2)(A), (B), (C). The court also specifically
noted that it had considered Vasquez-Vega’s early exposure to
illegal entry and relied on this fact when determining the
extent of the departure. Affording the court’s sentencing
determination the requisite deference, see Gall, 552 U.S. at 51,
we conclude its decision to depart upward by nine months was not
substantively unreasonable.
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
6
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
7