United States v. Mota-Campos , 294 F. App'x 774 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-5120
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROLANDO MOTA-CAMPOS, a/k/a Rigoberto Galeno-Moran, a/k/a
Alberto Galeno-Moran, a/k/a Rolando M. Compos, a/k/a Gavino
Barrera-Sala, a/k/a Rigoberto M. Galeno, a/k/a Rolando Morta
Qompos, a/k/a Rigoberto Moran Galeno, a/k/a Alberto Galeno,
a/k/a Gabino Barrera, a/k/a Rolando Morta Campos,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Henry Coke Morgan, Jr.,
Senior District Judge. (4:06-cr-00039-HCM-TEM-1)
Submitted: July 22, 2008 Decided: September 29, 2008
Before WILKINSON, MICHAEL, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Keith Loren
Kimball, Frances H. Pratt, Assistant Federal Public Defenders,
Norfolk, Virginia, for Appellant. Chuck Rosenberg, United States
Attorney, Lisa R. McKeel, Assistant United States Attorney, Newport
News, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Rolando Mota-Campos appeals the 174-month sentence he
received after his case was remanded for resentencing because the
district court failed to follow the incremental procedure required
by U.S. Sentencing Guidelines Manual (U.S.S.G.) § 4A1.3(a)(4)(B)
(2005), and Fourth Circuit precedent for departures above criminal
history category VI. United States v. Mota-Campos, 237 F. App’x
840 (4th Cir. 2007). On remand, the district court reimposed the
same sentence, but explained its reasons for the extent of the
departure. Mota-Campos contends on appeal that the sentence is
both procedurally and substantively unreasonable. We disagree, and
affirm the sentence.
The court identified two grounds that justified a
departure above category VI. First, Mota-Campos had been deported
three times before, with the deportation being handled
administratively each time. Thus, Mota-Campos had not been
prosecuted for his initial unlawful entry or his two previous
illegal reentries. The court reasoned that, because U.S.S.G.
§ 2L1.2 provided a base offense level of 8 for the crime of illegal
reentry, a departure of eight offense levels was warranted for
Mota-Campos’ two prior illegal reentries.
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Second, the court noted that Mota-Campos had three
convictions for driving under the influence (DUI) in Virginia
within ten years. Under Va. Code Ann. § 18.2-270(c)(1) (Lexis-
Nexis 2007), a third DUI conviction within ten years is a felony
with a mandatory minimum sentence of ninety days imprisonment.
However, Mota-Campos’ third Virginia DUI conviction was treated as
a first offense, for which he received a 30-day sentence.1 The
district court determined that, if Mota-Campos had not hidden his
identity with aliases, he would have sustained another felony
conviction, ensuring his placement in category VI.2 The court
reasoned that a prior felony conviction alone would also increase
the base offense level by four levels, see U.S.S.G.
§ 2L1.2(b)(1)(D), and that an alternative way of structuring the
departure would be to add four offense levels for the third DUI
conviction and one offense level for each of his uncounted illegal
reentries, resulting in a departure to offense level 28. Under
either calculation, which would have produced guideline ranges of
1
Mota-Campos was sentenced to 30 days in jail in April 2003
for a DUI conviction, received a suspended sentence in December
2003 for another DUI conviction, and was again sentenced to 30 days
in jail for a DUI conviction in November 2004. According to the
government, Mota-Campos was charged as “Alberto Galeno,” “Rigoberto
M. Compos,” and “Rigoberto M. Galeno.” He did not dispute this
information.
2
The court wisely decided not to treat Mota-Campos’ DUI
offenses as crimes of violence. The Supreme Court has since held,
in Begay v. United States, 128 S. Ct. 1581 (2008), that driving
under the influence is a not a “violent felony” under 18 U.S.C.A.
§ 924(e) (West 2000 & Supp. 2008).
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151-188 months or 140-175 months, respectively, the court decided
that a sentence of 174 months was appropriate.
In Gall v. United States, 128 S. Ct. 586 (2007), the
Supreme Court set out the standards for appellate review of
sentences as follows:
Regardless of whether the sentence imposed is inside or
outside the Guidelines range, the appellate court must
review the sentence under an abuse-of-discretion
standard. It must first ensure that the district court
committed no significant procedural error, such as
failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory,
failing to consider the § 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing to
adequately explain the chosen sentence — including an
explanation for any deviation from the Guidelines range.
Assuming that the district court’s sentencing decision is
procedurally sound, the appellate court should then
consider the substantive reasonableness of the sentence
imposed under an abuse-of-discretion standard.
Id. at 597.
Mota-Campos contends that his sentence is procedurally
unreasonable because (1) the district court failed to comply with
the incremental approach mandated by U.S.S.G. § 4A1.3; (2) its
assignment of seven or eight additional offense levels overstates
his criminal record; and (3) the district court failed to consider
that the sentence created unwarranted disparity among similarly
situated defendants.
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With respect to the incremental approach, Mota-Campos
argues that the court failed to consider whether any offense level
between 21 and 28 or 29 was sufficient, but he concedes that the
district court need not explain its rejection of each intervening
offense level. See United States v. Dalton, 477 F.3d 195, 199 (4th
Cir. 2007). The court’s explanation of its reasons for departing
to offense level 28 or 29 carried with it an implicit rejection of
all the intervening levels as inadequate. The court thus
adequately complied with the incremental approach.
Mota-Campos also argues that the court erred by treating
offense levels as equivalent to criminal history points. We
conclude that the court did not equate the two, but discussed the
various offenses which were unscored in Mota-Campos’ criminal
history, and examined how the base offense level was enhanced under
U.S.S.G. § 2L1.2 for such offenses to quantify the increase it
believed to be appropriate. Mota-Campos further maintains that the
court improperly assessed a four-level enhancement under § 2L1.2
for a prior felony conviction when he had already received a
sixteen-level enhancement and the guideline instructs the court to
apply only the greatest enhancement that may apply. In this
instance also, the court merely used the various enhancements in
§ 2L1.2 as a guide in quantifying the seriousness of the offenses
it sought to punish by means of the departure. While the court
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could have proceeded differently, Mota-Campos has not shown
procedural error in this respect.
Last, Mota-Campos claims that the court erred in failing
to consider the disparity created by the departure between his
sentence and the sentences of similarly situated defendants.
However, in Gall, the Supreme Court held that, where the district
court has “correctly calculated and carefully reviewed the
Guidelines range,” it “necessarily gave significant weight and
consideration to the need to avoid unwarranted disparities.” Gall,
128 S. Ct. at 599. The district court in this case correctly
calculated the guideline range and carefully reviewed it before
departing. Therefore, Mota-Campos has not shown that the court
failed to consider the need to avoid sentence disparity. We
conclude that the sentence was procedurally reasonable.
As explained in Gall, when reviewing a sentence outside
the guideline range for substantive reasonableness, the appellate
court should “take into account the totality of the circumstances
. . . .” Gall, 128 S. Ct. at 597. The court –
may consider the extent of the deviation, but must give
due deference to the district court’s decision that the
§ 3553(a) factors, on a whole, justify the extent of the
variance. The fact that the appellate court might
reasonably have concluded that a different sentence was
appropriate is insufficient to justify reversal of the
district court.
Id.
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Mota-Campos argues that the district court’s departure
creates an unwarranted disparity so severe that the sentence must
be reversed. However, in light of Gall’s conclusion that the
sentencing court “is in a superior position to find facts and judge
their import under § 3553(a) in the individual case,” id., and that
its sentencing decision should be accorded great deference, we
conclude that the sentence is not substantively unreasonable.
We therefore affirm the sentence imposed by the district
court. 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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