United States v. Jimmy Carcamo ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4039
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JIMMY ORLANDO CHIRINOS CARCAMO, a/k/a Armando Gustavo
Santibanez,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Samuel G. Wilson,
District Judge. (5:10-cr-00022-sgw-1)
Submitted: July 19, 2011 Decided: August 11, 2011
Before GREGORY, DUNCAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Larry W. Shelton, Federal Public Defender, Andrea L. Harris,
Assistant Federal Public Defender, Christine Madeleine Lee,
Research and Writing Attorney, Charlottesville, Virginia, for
Appellant. Timothy J. Heaphy, United States Attorney, Jeb T.
Terrien, Assistant United States Attorney, Harrisonburg,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jimmy Orlando Chirinos Carcamo pled guilty without a
plea agreement to one count of illegal reentry of a deported or
removed alien after conviction for an aggravated felony, in
violation of 8 U.S.C. § 1326(a), (b)(2) (2006), and was
sentenced to sixty months’ imprisonment. Carcamo appeals his
sentence. We affirm.
Carcamo, a Honduran citizen, was convicted in 1999 and
2000 of stalking and forgery and was deported. He entered the
United States in 2002 and was deported after a conviction for
illegal reentry after deportation. Carcamo again entered the
United States and was removed in February 2004. Following that
removal, Carcamo entered the United States yet again and
committed a variety of state felony and misdemeanor offenses.
While incarcerated in a Virginia jail, Carcamo was identified as
an illegal alien unlawfully in the United States. Investigation
confirmed that Carcamo had not received permission from the
Secretary of Homeland Security to reenter the United States.
After Carcamo’s guilty plea to unlawful reentry, his Guidelines
range under the U.S. Sentencing Guidelines Manual (2010) was
calculated at twenty-four to thirty months’ imprisonment. At
sentencing, the district court imposed an upward variance and
sentenced Carcamo to sixty months’ imprisonment.
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This court reviews the sentence imposed by the
district court, “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 entails appellate consideration of both the
procedural and substantive reasonableness of the sentence. Id.
at 51.
In determining whether a sentence is procedurally
reasonable, we first assess whether the district court properly
calculated the defendant’s Guidelines range. Id. at 49, 51. We
must then consider whether the district court treated the
Guidelines as mandatory, failed to consider the 18 U.S.C.
§ 3553(a) (2006) factors and any arguments presented by the
parties, selected a sentence based on “clearly erroneous facts,”
or failed to explain sufficiently the selected sentence. Id. at
50-51; United States v. Pauley, 511 F.3d 468, 473 (4th Cir.
2007). We also review whether the district court made an
“individualized assessment based on the facts presented.” Gall,
552 U.S. at 50; see United States v. Carter, 564 F.3d 325, 330
(4th Cir. 2009) (holding that, while the “individualized
assessment need not be elaborate or lengthy, . . . it must
provide a rationale tailored to the particular case . . . and
[be] adequate to permit meaningful appellate review” (internal
quotation marks omitted)).
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If the sentence is free of significant procedural
error, we review the substantive reasonableness of the sentence,
“tak[ing] into account the totality of the circumstances.”
Gall, 552 U.S. at 51. Although “we may consider the extent of
any variance from the advisory Guidelines range, we must give
due deference to the district court’s decision that the
§ 3553(a) factors, on a whole, justify the extent of the
variance.” United States v. Engle, 592 F.3d 495, 500
(4th Cir.), cert. denied, 131 S. Ct. 165 (2010) (internal
quotation marks omitted). “[T]he fact that we might reasonably
have concluded that a different sentence was appropriate is
insufficient to justify reversal of the district court.” United
States v. Morace, 594 F.3d 340, 346 (4th Cir.), cert. denied,
131 S. Ct. 307 (2010) (internal quotation marks omitted).
Carcamo argues that his sentence is unreasonable
because the district court stated in its sealed statement of
reasons that an upward variance was justified because Carcamo’s
Guidelines range accounted for only one of three aggravated
felonies he committed while present in the United States.
Because he received criminal history points for all of his prior
criminal offenses, Carcamo urges that the district court erred
by relying on this erroneous statement in imposing the sixty-
month sentence.
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Carcamo is correct that all of his prior felony
convictions and his relevant misdemeanor convictions were
counted in the computation of his criminal history score.
However, the statement in the sealed statement of reasons does
not accurately reflect the basis for the district court’s upward
variance. At sentencing, the court stated it had considered the
§ 3553(a) factors and explained that the sixty-month sentence
was warranted in light of the nature and circumstances of the
offense, Carcamo’s history and characteristics, and the need to
reflect the seriousness of the offense, to promote respect for
the law, to provide just punishment for Carcamo, and to provide
adequate deterrence to criminal conduct. When there is a
conflict between the court’s sentence as orally pronounced and
the written judgment of conviction, the oral sentence controls.
United States v. Osborne, 345 F.3d 281, 283 n.1 (4th Cir. 2003).
In this case, the district court’s valid orally-stated reasons
for the variant sentence control.
Next, Carcamo argues that his sentence is unreasonable
because the district court failed to consider the arguments he
raised to support the imposition of a within-Guidelines
sentence. We conclude this contention is without merit, as the
district court stated at sentencing that it had read Carcamo’s
written sentencing memorandum and then listened to his oral
arguments in support of a within-Guidelines sentence. The court
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also responded directly to Carcamo’s claims that a within-
Guidelines sentence was warranted in view of his criminal
history category, the nature and circumstances of some of his
prior entries into the United States, and his claim that he had
enemies in Honduras, explaining that Carcamo had “exploit[ed]”
the country providing him with haven from those enemies and was
a recidivist offender whose pattern of entering the United
States and committing crimes needed to be punished and deterred.
We conclude that the district court satisfied its obligation to
address Carcamo’s non-frivolous reasons for imposing a within-
Guidelines sentence. See Carter, 564 F.3d at 328.
Carcamo also argues that his sentence is unreasonable
because the upward variance was based on factors already
accounted for in the calculation of his Guidelines range. We
disagree. The court considered relevant § 3553(a) factors and
emphasized Carcamo’s pattern of repeatedly committing crimes
during his multiple periods of illegal presence in the country
and the need to deter Carcamo from continuing to engage in this
pattern as meriting the upward variance. The court’s rationale
in this regard was both plausible and appropriately tied to
§ 3553(a) factors that set Carcamo’s case apart from the
heartland of cases contemplated by the Guidelines. See Morace,
594 F.3d at 346.
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Finally, insofar as Carcamo may be arguing that the
sixty-month variant sentence is not appropriate in light of his
motivations for entering the United States and his efforts to
rehabilitate himself while incarcerated on state charges, we
afford “due deference to the district court's decision that the
§ 3553(a) factors, on a whole, justify the extent of the
variance.” Engle, 592 F.3d at 500 (internal quotation marks
omitted).
Accordingly, we affirm the district court’s judgment.
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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