United States v. Hugo Estrada , 526 F. App'x 309 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4975
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HUGO ALEJANDRO ESTRADA,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:12-cr-00024-MR-DLH-1)
Submitted: May 20, 2013 Decided: June 6, 2013
Before KEENAN, WYNN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David G. Belser, BELSER & PARKE, PA, Asheville, North Carolina,
for Appellant. Anne M. Tompkins, United States Attorney, John
D. Pritchard, Special Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Hugo Alejandro Estrada pled guilty to illegal reentry
of a previously deported alien, in violation of 8 U.S.C.
§ 1326(a) (2006). The district court sentenced him to sixteen
months’ imprisonment, a variance of nine months above the
advisory Sentencing Guidelines range. On appeal, Estrada
challenges the procedural and substantive reasonableness of his
sentence. We affirm.
This court reviews a sentence, “whether inside, just
outside, or significantly outside the Guidelines range[ ] under
a deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 41 (2007). This review requires
consideration of both the procedural and substantive
reasonableness of a sentence. Id. at 51. “Procedural
reasonableness evaluates the method used to determine a
defendant’s sentence.” United States v. Mendoza–Mendoza, 597
F.3d 212, 216 (4th Cir. 2010). We must assess whether the
district court properly calculated the advisory Guidelines
range, considered the 18 U.S.C. § 3553(a) (2006) factors,
analyzed any arguments presented by the parties, and
sufficiently explained the selected sentence. Gall, 552 U.S. at
51.
Estrada first challenges the procedural aspect of his
sentence on the ground that the district court failed to provide
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an individualized assessment when it imposed the variant
sentence. “Regardless of whether the district court imposes an
above, below, or within-Guidelines sentence, it must place on
the record an individualized assessment based on the particular
facts of the case before it.” United States v. Carter, 564 F.3d
325, 330 (4th Cir. 2009) (internal quotation marks omitted). An
extensive explanation is not required as long as the appellate
court is satisfied “‘that [the district court] has considered
the parties’ arguments and has a reasoned basis for exercising
[its] own legal decisionmaking authority.’” United States v.
Engle, 592 F.3d 495, 500 (4th Cir. 2010) (quoting Rita v. United
States, 551 U.S. 338, 356 (2007)). Estrada has preserved the
challenge to this aspect of his sentence “[b]y drawing arguments
from § 3553 for a sentence different than the one ultimately
imposed.” United States v. Lynn, 592 F.3d 572, 578 (4th Cir.
2010). If the district court abused its discretion, this court
will “reverse unless . . . the error was harmless.” Id. at 576.
Our review of the sentencing transcript leads us to
conclude that the district court sufficiently explained the
chosen sentence. Specifically, the court cited the relevant
§ 3553(a) factors it considered and noted Estrada’s multiple
illegal reentries and involvement in serious drug trafficking
offenses. Because the district court adequately explained its
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reasons for the sentence imposed, we conclude that the district
court committed no procedural error.
Because there is no procedural error, we next review
the substantive reasonableness of Estrada’s sentence by
“examin[ing] the totality of the circumstances to see whether
the sentencing court abused its discretion in concluding that
the sentence it chose satisfied the standards set forth in
§ 3553(a).” Mendoza–Mendoza, 597 F.3d at 216. “Where, as here,
the district court decides that a sentence outside the advisory
range is appropriate, [the court] ‘must consider the extent of
the deviation and ensure that the justification is sufficiently
compelling to support the degree of the variance.’” United
States v. Morace, 594 F.3d 340, 346 (4th Cir. 2010) (quoting
Gall, 552 U.S. at 50). “A major departure from the advisory
range ‘should be supported by a more significant justification
than a minor one.’” Id. (quoting Gall, 552 U.S. at 50). Even
if we would have imposed a different sentence, that fact alone
will not justify vacatur of the district court’s sentence.
Gall, 552 U.S. at 51.
Estrada asserts the district court’s imposition of an
upward variance rendered his sentence substantively unreasonable
because (1) the district court gave significant weight to an
improper factor, namely, a hypothetical Guidelines range that
would have applied to a defendant with a previous conviction for
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an aggravated felony or one who was charged with a more serious
illegal reentry offense; and (2) his case presents no
“compelling” justification for any deviation from the Guidelines
range. Because Estrada did not raise any objection to the
court’s explanation of his sentence below, his assertion that
the district court considered an improper factor is reviewed for
plain error. See United States v. Hargrove, 625 F.3d 170, 183-
84 (4th Cir. 2010) (on appeal, where defendant claims
substantive unreasonableness for the first time based on
district court’s consideration of improper factor when
explaining basis for sentence, plain error review applies). To
establish plain error, Estrada must show that 1) the court
erred, 2) the error is clear and obvious, and 3) the error
affected his substantial rights. United States v. Olano, 507
U.S. 725, 732-34 (1993). Even when this burden is met, this
court has discretion whether to recognize the error, and should
not do so unless it “seriously affects the fairness, integrity
or public reputation of judicial proceedings.” Id. at 736
(internal quotation marks and alterations omitted).
Here, the district court did not impose an eight-level
enhancement under USSG § 2L1.2. It did, however, consider that
Estrada’s circumstances were not far removed from those of
others who received the enhancement. Estrada argues that such
consideration was improper and could not serve as the basis for
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an upward departure, particularly when his prior conviction did
not qualify him for the enhancement. Estrada offers no legal
authority for his assertion that such consideration by the
district court constituted error. Furthermore, his argument
ignores the fact that the district court’s upward variance was
grounded in its consideration of other § 3553(a) factors.
The district court emphasized Estrada had been
deported twice before and that he had been convicted of
trafficking in methamphetamine, a dangerous and harmful drug.
The court further noted Estrada’s disregard for the laws of this
country. The variance was thus based not only on the need to
avoid unwarranted sentencing disparities among similarly
situated defendants, but the history and characteristics of the
defendant, and the need to afford adequate deterrence, to
protect the public, and to promote respect for the law.
We conclude that the district court adequately tied
its decision to vary upward nine months to the § 3553(a) factors
and that Estrada’s sentence is substantively reasonable. Thus,
the district court’s decision to depart nine months above the
Guidelines range is supported by the record and does not
constitute an abuse of discretion.
Accordingly, we affirm Estrada’s sentence. We
dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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