United States v. Lazaro Gutierrez-Bustos , 456 F. App'x 296 ( 2011 )


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  •                             UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 09-4599
    UNITED STATES OF AMERICA,
    Plaintiff – Appellee,
    v.
    LAZARO GUTIERREZ-BUSTOS, a/k/a Lazaro Bustos,
    Defendant - Appellant.
    Appeal from the United States District        Court for the Middle
    District of North Carolina, at Durham.         Thomas D. Schroeder,
    District Judge. (1:08-cr-00373-TDS-1)
    Submitted:   October 28, 2011             Decided:     December 5, 2011
    Before NIEMEYER and     GREGORY,   Circuit   Judges,    and   HAMILTON,
    Senior Circuit Judge.
    Affirmed by unpublished per curiam opinion.
    Eugene E. Lester, III, SHARPLESS & STAVOLA, PA, Greensboro,
    North Carolina, for Appellant. Ripley Rand, United States
    Attorney, Terri-Lei O’Malley, Assistant United States Attorney,
    Greensboro, North Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Lazaro Gutierrez-Bustos pled guilty to one count of
    illegal    reentry       of   a    deported       alien    who   had     previously            been
    convicted    of     an    aggravated       felony     in    violation          of       
    8 U.S.C. § 1326
    (a), (b)(2) (2006).              The district court sentenced him to
    eighty-two months’ imprisonment and he now appeals.                                 Finding no
    error, we affirm.
    Gutierrez-Bustos              challenges        the     district               court’s
    imposition of a departure sentence pursuant to U.S. Sentencing
    Guidelines Manual (“USSG”) § 4A1.3 (2008).                       We review a sentence
    for reasonableness, applying an abuse of discretion standard.
    Gall v. United States, 
    552 U.S. 38
    , 51 (2007); see also United
    States v. Layton, 
    564 F.3d 330
    , 335 (4th Cir. 2009).                                         In so
    doing, we first examine the sentence for “significant procedural
    error,”     including         “failing        to      calculate          (or        improperly
    calculating) the Guidelines range, treating the Guidelines as
    mandatory,    failing         to    consider        the    [18     U.S.C.]          §       3553(a)
    [(2006)]     factors,         selecting       a     sentence       based        on          clearly
    erroneous facts, or failing to adequately explain the chosen
    sentence . . . .”             Gall, 
    552 U.S. at 51
    .                Finally, this court
    considers     the        substantive       reasonableness          of     the           sentence,
    “tak[ing]     into       account     the     totality       of     the    circumstances,
    including the extent of any variance from the Guidelines range.”
    
    Id.
    2
    When reviewing a departure, 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.     Hernandez-Villanueva,              
    473 F.3d 118
    ,     123    (4th    Cir.
    2007).         Under USSG § 4A1.3(a)(1), “[i]f reliable information
    indicates        that       the     defendant’s           criminal           history     category
    substantially              under-represents              the        seriousness         of     the
    defendant’s          criminal        history        or    the         likelihood       that    the
    defendant will commit other crimes, an upward departure may be
    warranted.”          We have thoroughly reviewed the record and conclude
    that     the    district       court’s        decision         to     upwardly        depart   was
    reasonable,          the    extent       of   the    departure          is     reasonable      and
    supported by the record, and the court adequately explained both
    its decision to depart and the extent of its departure.                                        See
    United States v. Lawrence, 
    349 F.3d 724
    , 727-28 (4th Cir. 2003).
    Finally, we find Gutierrez-Bustos’ assertion that the district
    court should have departed downward sua sponte on the basis of
    cultural assimilation to be without merit.
    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
    3
    before   the   court   and   argument   would   not   aid   the   decisional
    process.
    AFFIRMED
    4
    

Document Info

Docket Number: 09-4599

Citation Numbers: 456 F. App'x 296

Judges: Niemeyer, Gregory, Hamilton

Filed Date: 12/5/2011

Precedential Status: Non-Precedential

Modified Date: 11/5/2024