United States v. Salomon Arias ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4359
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
SALOMON PASILLAS ARIAS, a/k/a Mon Pacheco Ruis, a/k/a
Salomon Pasillas-Arias, a/k/a Javier Dela-Cruz, a/k/a
Salomon Pasillas,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:11-cr-00401-CCE-1)
Submitted: January 31, 2013 Decided: February 12, 2013
Before DUNCAN, KEENAN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, Mireille P.
Clough, Assistant Federal Public Defender, Winston-Salem, North
Carolina, for Appellant. Ripley Rand, United States Attorney,
Angela H. Miller, Assistant United States Attorney, Elizabeth
Choi, Third Year Law Student, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Salomon Pasillas Arias, a native and citizen of
Mexico, pled guilty pursuant to a written plea agreement to one
count of illegal reentry of a deported alien after being
convicted of a felony in violation of 8 U.S.C. §§ 1326(a),
(b)(1) (2006). The court imposed a departure or variance
sentence of twenty-four months’ imprisonment. Pasillas Arias
appeals, contending that the sentence was unreasonable. We
affirm.
This court reviews 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)
(internal quotation marks omitted). 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 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
the circumstances. See United States v. Strieper, 666 F.3d 288,
292, 295 (4th Cir. 2012).
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Pasillas Arias contends that the court erred
procedurally in departing upward based on an inadequate criminal
history category because the court failed to use the
step-by-step approach set forth in United States v. Rusher, 966
F.2d 868 (4th Cir. 1992), and jumped directly from a category
III to category V. However, a sentencing court 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 would be harmless
because the upward variance based on the § 3553(a) factors
justified the sentence imposed.” Id. at 104.
Here the court expressly found that even if the
departure was not procedurally sound, the court “would still
vary upward to the same effect because of the deportations, the
repeated breaking of the law and the need to protect the public
from future crime.” (J.A. 65). We have held that a “resulting
sentence is procedurally reasonable [if] the district court
adequately explained its sentence on alternative grounds
supporting a variance sentence, by reference to 18 U.S.C.
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§ 3553(a).” United States v. Grubbs, 585 F.3d 793, 804 (4th
Cir. 2009).
Here, the district court found that Pasillas Arias’
criminal history category was substantially underrepresented and
that category V was more appropriate, taking into account his
two prior deportations, his felony death by motor vehicle
conviction after repeated speeding and traffic offenses, and
numerous uncounted misdemeanors and infractions. Because the
district court made an alternative finding that a variance
sentence under § 3553(a) was appropriate, after specifically
considering the nature and circumstances of the offense, the
prior deportations, the repeated breaking of the law and the
need to protect the public from future crime, we find that the
sentence was procedurally reasonable.
Pasillas Arias next argues that his sentence, which
was eight months above the high end of the advisory guidelines
range, was substantively unreasonable given the mitigating
factors present in his case. 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). “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.
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Pauley, 511 F.3d 468, 474 (4th Cir. 2007) (internal quotation
marks omitted).
The district court considered arguments from the
parties addressing both mitigating and aggravating
circumstances, and specifically noted Pasillas Arias’ repeated
deportations, repeated violations of the law, and the need to
protect the public. The court observed that the many
misdemeanors and infractions were not accounted for in Pasillas
Arias’ original sentence calculation, and that the list of
traffic violations eventually led to a conviction of felony
death by motor vehicle involving alcohol. The court emphasized
the need to protect the public from future criminal activity.
As such, we find that the court sufficiently referenced the
§ 3553(a) factors, and conclude that the resulting sentence was
substantively reasonable.
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 this court and argument would not aid the decisional
process.
AFFIRMED
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