United States v. Mota-Campos , 237 F. App'x 840 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5196
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
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 Rolando Campos-Morta, 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)
Submitted: June 27, 2007 Decided: July 30, 2007
Before WILKINSON, MICHAEL, and TRAXLER, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Michael S. Nachmanoff, Acting Federal Public Defender, Keith Loren
Kimball, Assistant Federal Public Defender, Frances H. Pratt,
Research and Writing Attorney, 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Unpublished opinions are not binding precedent in this circuit.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, a Mexican citizen, pled guilty to
unlawful reentry by a deported alien following conviction of an
aggravated felony, 8 U.S.C. § 1326(a), (b)(2) (2000). In
sentencing him, the district court departed upward from the
advisory guideline range of 70-87 months and imposed a sentence of
174 months imprisonment. Mota-Campos appeals his sentence, arguing
that the sentence is unreasonable because the district court
departed based on inapplicable guidelines, and failed to give
adequate notice or to follow the departure procedures set out in
U.S. Sentencing Guidelines Manual § 4A1.3, p.s. (2005). He also
maintains that the district court’s factfinding violated the Sixth
Amendment. No Sixth Amendment error occurred,* and we conclude
that the district court’s decision to depart was reasonable, but we
agree that the district court failed to explain adequately its
reasons for the extent of the departure. We therefore vacate the
sentence and remand for further proceedings.
Mota-Campos’ offense level was 21. With eleven criminal
history points, he was in criminal history category V. His
*
Mota-Campos asserts that this Court has returned to a
mandatory guideline scheme by reason of its decisions in United
States v. Green, 436 F.3d 449, 457 (4th Cir.) (holding that
sentence within advisory guideline range is presumptively
reasonable), cert. denied, 126 S. Ct. 2309 (2006), and United
States v. Johnson, 445 F.3d 339, 341 (4th Cir. 2006). His position
has been rejected by the Supreme Court. Rita v. United States, ___
S. Ct. ___, 2007 WL 1772146 (U.S. June 21, 2007) (No. 06-5754).
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recommended advisory guideline range was 70-87 months. His
criminal history score resulted from sentences for: abduction,
three DWI convictions, resisting arrest, and abusive language. He
also received points for committing the instant offense while under
a criminal justice sentence. No points were awarded for: a fine
for trespassing, two suspended sentences for driving without a
license, two convictions for assault and battery [of his wife and
son] where no sentence was imposed because adjudication was
completed after Mota-Campos was in deportation proceedings , and a
ten-day sentence for contempt.
The government moved for an upward departure pursuant to
USSG § 4A1.3, based on the following factors: Mota-Campos had
multiple alcohol-related convictions; he had previously been
deported three times; he had outstanding criminal charges for three
separate assaults in Kings County, New York; he had received
lenient sentences in the past by using multiple aliases which
concealed his criminal history; he had not been deterred from
criminal conduct; and his statements to law enforcement authorities
indicated that he would again reenter the United States illegally.
At the sentencing hearing, the government advised that
the court should structure a departure by using the incremental
approach authorized in United States v. Cash, 983 F.2d 558 (4th
Cir. 1992), and requested a sentence of 120 months. The district
court then determined that Mota-Campos’ criminal history score
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would be higher if he had not lied about his name so often, that
category V was inadequate to protect the public from likely further
criminal conduct on his part, and that the guideline sentence would
be “grossly inadequate.” The court decided that an appropriate
sentence would be twice the guideline maximum, or 174 months’
confinement.
The court further explained its decision in a written
sentencing order, entered November 7, 2006, which cited encouraged
grounds for departure identified in various guidelines and
guideline commentary, i.e., USSG § 2B1.1 (offense level understates
seriousness of crime); § 4A1.3 (adequacy of criminal history); USSG
5K2.17 (public welfare); and USSG § 5K2.21 (dismissed and uncharged
conduct). The court stated that it had departed pursuant to 18
U.S.C.A. § 3553(a)(2) (West 2000 & Supp. 2007), “to (A) reflect the
seriousness of the offense, promote respect for the law, and to
provide punishment for the [offense]; (B) to afford adequate
deterrence to criminal conduct; and (C) to protect the public from
further crimes of the defendant.”
A sentence is reviewed for reasonableness. United
States v. Booker, 543 U.S. 220 (2005); United States v.
Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir. 2007). When
there is a departure, 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 sentencing 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).
Here, the government requested a departure under § 4A1.3,
and the district court determined that a departure was warranted
because (1) Mota-Campos had received relatively lenient treatment
in different courts that were likely unaware of his other offenses
because of his extensive use of aliases, (2) his attitude indicated
a high probability that he would return to the United States if
deported and would commit additional crimes, and (3) he
consequently posed a danger to the public. We conclude that these
findings adequately state the court’s reasons for departing and are
proper factors for consideration. Hernandez-Villanueva, 473 F.3d
at 123. Thus, the district court’s decision to depart was
reasonable. United States v. Dalton, 477 F.3d 195, 198-99 (4th
Cir. 2007).
In its written order explaining the departure, the
district court cited other guidelines as well as § 4A1.3.
Mota-Campos contends that the court erred in relying on these
guidelines without giving him notice. When the court departs from
the advisory guideline range post-Booker, the defendant is still
entitled to notice of the court’s intention to depart and the
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grounds for departure before sentencing. Fed. R. Crim. P. 32(h);
United States v. Davenport, 445 F.3d 366, 371 (4th Cir. 2006).
However, a failure to provide notice may be harmless error if the
defendant is not prejudiced. Davenport, 445 F.3d at 371. We are
satisfied that Mota-Campos was not prejudiced because the district
court cited the additional guidelines only for general principles
which are echoed in § 4A1.3 or in § 3553(a)(2). Thus, any error
was harmless. See Davenport, 445 F.3d at 371.
However, a departure from category V to category VI would
have produced a guideline range of 77-96 months. The court in
effect departed above category VI by imposing a sentence of 174
months. The court did not follow the “incremental approach”
mandated by § 4A1.3(a)(4)(B) and our precedents for departures
above category VI. Dalton, 477 F.3d at 199; United States v. Cash,
983 F.2d 558, 561 (4th Cir. 1992); United States v. Rusher, 966
F.2d 868, 884 (4th Cir. 1992). The court imposed a sentence that
was twice the top of the advisory guideline range without providing
either the incremental analysis required by § 4A1.3 or the
“extensive justification” required for “dramatic departures.”
Dalton, 477 F.3d at 199 (citing United States v. Hampton, 441 F.3d
284, 288 (4th Cir. 2006)). The court merely stated orally that it
believed 174 months to be an appropriate sentence and, in its
written order, failed to explain how it determined the extent of
the departure.
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Accordingly, we vacate the sentence and remand for
resentencing. On remand, the district court should explain why
category VI is inadequate and “move incrementally down the
sentencing table to the next higher offense level until it finds a
guideline range appropriate to the case.” USSG § 4A1.3(a)(4)(B);
see also Dalton, 477 F.3d at 200 n.3. 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.
VACATED AND REMANDED
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