United States v. Torres-Garcia , 252 F. App'x 563 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4824
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
PABLO TORRES-GARCIA, a/k/a Joel Noe
Hernandez-Moreno, a/k/a Jose Garcia-Salazar,
a/k/a Vicente Rojas-Farias,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Senior
District Judge. (1:06-cr-00062-WLO)
Submitted: October 15, 2007 Decided: October 30, 2007
Before WILKINSON, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, William C. Ingram, First
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Arnold L. Husser, Angela Hewlett Miller, OFFICE OF THE
UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pablo Torres-Garcia pled guilty pursuant to a plea
agreement to one count of illegal reentry of a deported alien, in
violation of 8 U.S.C. § 1326(a) & (b)(2) (2000). The district
court sentenced Torres-Garcia to 100 months’ imprisonment, an
upward departure of four months from the high end of Torres-
Garcia’s sentencing guidelines range of imprisonment. On appeal,
Torres-Garcia’s attorney filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating there are no meritorious
issues for appeal, but raising for the court’s consideration
whether the district court erred in imposing an upward departure.
Torres-Garcia was informed of the opportunity to file a pro se
supplemental brief, but did not do so. The Government did not file
a brief. We affirm.
We will affirm the sentence imposed by the district court
as long as it is within the statutorily prescribed range and
reasonable. United States v. Hughes, 401 F.3d 540 (4th Cir. 2005).
In sentencing a defendant, the district court must: (1) properly
calculate the guideline range; (2) determine whether a sentence
within that range serves the factors under 18 U.S.C.A. § 3553(a)
(West 2000 & Supp. 2007); (3) implement mandatory statutory
limitations; and (4) explain its reasons for selecting the
sentence, especially a sentence outside the advisory range. United
States v. Green, 436 F.3d 449, 455-56 (4th Cir.), cert. denied, 126
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S. Ct. 2309 (2006). Even if the sentence exceeds the advisory
guideline range, it will generally be deemed reasonable “if the
reasons justifying the variance are tied to § 3553(a) and are
plausible.” United States v. Moreland, 437 F.3d 424, 434 (4th
Cir.), cert. denied, 126 S. Ct. 2054 (2006).
If the court finds that a sentence within the guidelines
does not serve § 3553(a) factors, it may impose a different
sentence within statutory limits. If that is the case, the court
should first look “to whether a departure is appropriate based on
the Guidelines Manual or relevant case law.” Moreland, 437 F.3d at
432. The court must make factual findings, as appropriate or
necessary to carry out its sentencing function, and in every case
give the reasons for the sentence imposed, as well as reasons for
particular deviations from the Sentencing Guidelines. Green, 436
F.3d at 455. This court must ask “whether the sentence was
selected pursuant to a reasoned process in accordance with the law,
in which the court did not give excessive weight to any relevant
factor, and which effected a fair and just result in light of the
relevant facts and law.” Id. at 457.
A district court may depart upward from the guidelines
range under U.S. Sentencing Guidelines Manual § 4A1.3 (2005) when
“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
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crimes.” USSG § 4A1.3(a)(1). The guideline further directs that
“[i]n a case in which the court determines that the extent and
nature of the defendant’s criminal history, taken together, are
sufficient to warrant an upward departure from Criminal History
Category VI, the court should structure the departure by moving
incrementally down the sentencing table to the next higher offense
level in Criminal History Category VI until it finds a guideline
range appropriate to the case.” USSG § 4A1.3(a)(4)(B). Commentary
to the guideline states that, “[i]n determining whether an upward
departure from Criminal History Category VI is warranted, the court
should consider that the nature of the prior offenses rather than
simply their number is often more indicative of the seriousness of
the defendant’s criminal record.” USSG § 4A1.3, comment. (n.2(B)).
Our review of the record shows the district court
properly determined that Torres-Garcia’s criminal history category
under-represented his criminal history. It properly moved
incrementally down the sentencing table to the next higher offense
level and chose a sentence from within that range of imprisonment.
We find no error.
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We
therefore affirm Torres-Garcia’s conviction and sentence. This
court requires that counsel inform his client, in writing, of the
right to petition the Supreme Court of the United States for
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further review. If he requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Torres-Garcia.
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
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