United States v. Banda-Zarate , 232 F. App'x 344 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5233
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RAUL BANDA-ZARATE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (5:05-cr-00222-F-ALL)
Submitted: June 18, 2007 Decided: July 10, 2007
Before MICHAEL and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney, Anne M.
Hayes, Jennifer P. May-Parker, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Raul Banda-Zarate, a citizen of Mexico, pled guilty to
illegally reentering the United States after having been convicted
of felonies, in violation of 8 U.S.C. § 1326(a) and (b)(2). The
district court initially sentenced Banda-Zarate to 105 months of
imprisonment. Banda-Zarate appealed, and we remanded for
resentencing based upon the Government’s unopposed motion. Upon
resentencing, the district court calculated that Banda-Zarate’s
advisory guidelines range was 51 to 63 months in prison. The
Government moved for an upward departure based upon Banda-Zarate’s
propensity for recidivism, the understatement of his criminal
history, and the seriousness of the crimes he committed. The
district court upwardly departed four levels, sentencing Banda-
Zarate to 96 months in prison. Banda-Zarate again appealed his
sentence and contends his sentence is unreasonable because the
district court failed to consider all of the factors found in
§ 3553(a) and erred in upwardly departing from the advisory
guidelines range. Finding no error, we affirm.
After United States v. Booker, 543 U.S. 220 (2005), a
district court is no longer bound by the range prescribed by the
sentencing guidelines. In reviewing a sentence outside the
guidelines range, the appeals court must 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
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divergence from the guideline range.” United States v. Hernandez-
Villanueva, 473 F.3d 118, 123 (4th Cir. 2007). A sentence is
unreasonable if the “court provides an inadequate statement of
reasons or relies on improper factors in imposing a sentence
outside the properly calculated advisory sentence range. . . .”
Id. A departure pursuant to § 4A1.3 is encouraged, provided that
the criminal history category does not account adequately for the
defendant’s past criminal conduct or the likelihood that he will
commit other crimes. United States v. Dixon, 318 F.3d 585, 588
(4th Cir. 2003).
“The district court need not discuss each factor set
forth in § 3553(a) ‘in checklist fashion;’ ‘it is enough to
calculate the range accurately and explain why (if the sentence
lies outside it) this defendant deserves more or less.’” United
States v. Moreland, 437 F.3d 424, 432 (4th Cir.), cert. denied, 126
S.Ct. 2054 (2006) (quoting United States v. Dean, 414 F.3d 725, 729
(7th Cir. 2005)).
Here, the district court sentenced Banda-Zarate post-
Booker and appropriately treated the guidelines as advisory. After
accurately calculating an advisory sentencing guideline range of 51
to 63 months, the district court examined the § 3553(a) factors and
concluded that they supported an upward departure from the
guidelines range. The district court determined that based upon
Banda-Zarate’s prior convictions and deportations, an upward
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departure of four levels was warranted. The court assigned an
additional point for every three felony convictions for crimes
Banda-Zarate committed after reentering the United States after
each of three deportations, for a total of three points, and one
additional point based upon the likelihood that he would commit
future crimes. This departure yielded an offense level of 21 and
combined with the criminal history score of VI, the guidelines
range was 77 to 96 months. The court discussed the seriousness of
Banda-Zarate’s criminal history, the likelihood that he would
commit further crimes, his propensity to illegally renter the
country, and his prior escape from custody. On these facts, we
conclude the district court sufficiently articulated its reasons
for the departure from the guidelines range and imposed a
reasonable sentence.
Accordingly, we affirm Banda-Zarate’s sentence. 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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