United States v. Agustin Rivera-Santana

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 10-5123
AGUSTIN RIVERA-SANTANA,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert E. Payne, Senior District Judge.
(3:10-cr-00074-REP-1)
Argued: October 28, 2011
Decided: February 2, 2012
Before WILKINSON, KING, and DIAZ, Circuit Judges.
Affirmed by published opinion. Judge King wrote the opin-
ion, in which Judge Wilkinson and Judge Diaz joined.
COUNSEL
ARGUED: Mary Elizabeth Maguire, OFFICE OF THE FED-
ERAL PUBLIC DEFENDER, Richmond, Virginia, for
Appellant. Stephen David Schiller, OFFICE OF THE
UNITED STATES ATTORNEY, Richmond, Virginia, for
Appellee. ON BRIEF: Michael S. Nachmanoff, Federal Pub-
2 UNITED STATES v. RIVERA-SANTANA
lic Defender, Alexandria, Virginia, Patrick L. Bryant,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Rich-
mond, Virginia, for Appellant. Neil H. MacBride, United
States Attorney, Alexandria, Virginia, for Appellee.
OPINION
KING, Circuit Judge:
Defendant Agustin Rivera-Santana seeks relief from a sen-
tence of 240 months in prison, imposed as a result of his ille-
gal reentry into the United States after being removed for a
conviction of an aggravated felony, in violation of 8 U.S.C.
§ 1326(a) and (b)(2). On appeal, Rivera-Santana mounts sev-
eral procedural challenges to the sentence, contending that the
district court erred in making two upward departures in the
advisory Sentencing Guidelines range, augmented by an
upward variance of 90 months therefrom. He also asserts that
the resulting sentence — the statutory maximum — is, in any
event, substantively unreasonable. As explained below, we
reject these contentions and affirm.
I.
A.
Rivera-Santana was born in Mexico in 1956.1 In 1973, he
came to the United States as a lawful permanent resident and
worked as an agricultural laborer in California. On December
20, 1974, Rivera-Santana was convicted of reckless driving in
California and sentenced to 125 days in jail. In the 1970s and
1
We recapitulate herein the stipulated facts underlying Rivera-Santana’s
conviction, plus certain background information contained in the Presen-
tence Investigation Report, which was accepted without objection. See
J.A. 24-27, 107. (Citations herein to "J.A.___" refer to the contents of the
Joint Appendix filed by the parties in this appeal.)
UNITED STATES v. RIVERA-SANTANA 3
early 1980s, he was arrested four more times in California: for
drunk driving in January 1975 and again in April 1975; for
grand theft in 1981; and for assault and battery in 1983.2
In 1988, Rivera-Santana shot and killed his pregnant wife.
He was thereafter convicted in California of voluntary man-
slaughter and received an eighteen-year sentence. Rivera-
Santana was paroled from prison on January 29, 1998, and
was deported to Mexico on February 7, 1998. Just a few days
later, on February 16, 1998, he reentered the United States
illegally. On that occasion, Rivera-Santana was attempting to
smuggle other aliens across the border. He was arrested by
border patrol agents the next day, February 17, 1998, and
deported to Mexico a week later. On March 1, 1998, a mere
five days after being deported, Rivera-Santana illegally reen-
tered this country a second time, evading apprehension until
August 16, 2000, when he was arrested in California for driv-
ing under the influence ("DUI"). He nevertheless remained in
the United States for another year, until being arrested on
May 7, 2001, by agents of the Immigration and Naturalization
Service. On May 10, 2001, Rivera-Santana’s prior removal
order was reinstated, and he was deported again on June 12,
2001.
In March 2005, Rivera-Santana illegally reentered the
United States for a third time, travelling to Virginia to live
with his daughter and her family. Soon thereafter, on August
24, 2005, he was convicted in Virginia of an open container
violation and fined fifty dollars. A few months later, on Feb-
ruary 5, 2006, Rivera-Santana sexually assaulted his eight-
year-old granddaughter in his daughter’s home. As a result, he
was convicted in Virginia Beach of aggravated sexual assault
and attempted forcible sodomy. For these offenses, he was
sentenced to thirty years in prison, with all but six years and
2
Except for the 1983 assault and battery charge, which was not prose-
cuted, the probation officer in this case was unable to determine the dispo-
sitions of the California arrests.
4 UNITED STATES v. RIVERA-SANTANA
ten months suspended. Rivera-Santana is scheduled for
release from the Virginia prison facilities on March 9, 2012.
On March 2, 2010, the grand jury in the Eastern District of
Virginia indicted Rivera-Santana for illegal reentry after a
prior removal for a conviction of an aggravated felony, in vio-
lation of 8 U.S.C. § 1326(a) and (b)(2).3 On June 23, 2010,
Rivera-Santana entered a plea of guilty to that offense, which
carries a statutory maximum of 240 months in prison. The
stipulated statement of facts filed during Rivera-Santana’s
plea proceedings reflects that his voluntary manslaughter con-
viction in California constitutes an aggravated felony under
§ 1326(b)(2). See J.A. 24.
B.
In conjunction with the sentencing proceedings in the dis-
trict court, the probation officer prepared Rivera-Santana’s
Presentence Investigation Report (the "PSR"). The PSR rec-
ommended an adjusted offense level of 21, reflecting a
sixteen-level enhancement pursuant to Guidelines section
2L1.2 (the "illegal reentry guideline") for Rivera-Santana’s
prior voluntary manslaughter conviction. The resultant
offense level, considered in combination with the applicable
criminal history category, calculated at IV, yielded an advi-
3
Section 1326 of Title 8 is a somewhat convoluted statutory provision,
criminalizing an unlawful entry by an alien into the United States and pro-
viding for the punishment thereof. The basic offense of unlawful reentry
is provided for and described in subsection (a). That subsection provides,
in pertinent part, that "any alien who — (1) has been . . . removed . . . and
thereafter (2) . . . is at any time found in[ ] the United States[ ] unless . . .
the Attorney General has expressly consented to such alien’s reapplying
for admission" is subject to imprisonment for "not more than 2 years."
Subsection (b) of § 1326 creates a statutory enhancement for cases involv-
ing, inter alia, an aggravated felony. In such a case, subsection (b)(2) pro-
vides, in relevant part, that an alien "whose removal was subsequent to a
conviction for commission of an aggravated felony . . . shall be . . . impris-
oned not more than 20 years."
UNITED STATES v. RIVERA-SANTANA 5
sory Guidelines range of 57 to 71 months.4 On September 10,
2010, the government moved for an upward variance, request-
ing that Rivera-Santana receive the 240-month statutory max-
imum.
The district court conducted its sentencing hearing on Octo-
ber 8, 2010, first determining that Rivera-Santana’s criminal
history was underrepresented in the PSR-recommended
Guidelines calculations because certain of his prior convic-
tions and arrests were unscored. See USSG § 4A1.3(a) (pro-
viding for upward departure where "reliable information
indicates that the defendant’s criminal history category sub-
stantially under-represents the seriousness of the defendant’s
criminal history"). Hence, the court upwardly departed,
adding seventeen criminal history points to the PSR-
recommended eight.5 The court’s revised total of twenty-five
4
The PSR specified that six criminal history points were assigned for
Rivera-Santana’s prior criminal record: three points for the voluntary man-
slaughter offense in California and three points for the aggravated sexual
assault conviction in Virginia. Two additional criminal history points were
assigned for the offense of conviction. These eight criminal history points
resulted in the PSR-recommended criminal history category of IV. Pursu-
ant to the illegal reentry guideline, the base offense level of 8, as calcu-
lated in the PSR, was enhanced sixteen levels on account of Rivera-
Santana’s prior conviction in California for a crime of violence (i.e., vol-
untary manslaughter). See USSG § 2L1.2(a), (b)(1)(A)(ii) (2009) (provid-
ing base offense level of 8 for defendant convicted of unlawfully entering
United States subject to increase by sixteen levels where defendant was
previously removed after conviction for felony offense that constitutes
crime of violence). In sum, after Rivera-Santana received a three-level
downward adjustment for acceptance of responsibility, see id. § 3E1.1, the
PSR-recommended offense level was 21.
5
More specifically, the sentencing court identified the following as the
bases for its additional seventeen criminal history points:
• One criminal history point for Rivera-Santana’s 1974 reckless
driving conviction;
• One point each for his two 1975 drunk driving arrests;
• One point for his 1981 grand theft arrest;
6 UNITED STATES v. RIVERA-SANTANA
criminal history points elevated Rivera-Santana’s criminal
history category to VI (the highest possible).
The sentencing court then determined that a criminal his-
tory category of VI, coupled with an offense level of 21, pro-
duced an inadequate advisory Guidelines range (77 to 96
months). The court explained:
[Rivera-Santana’s] history bespeaks a very danger-
ous person. It bespeaks one of the most dangerous
people I’ve ever seen before this Court. It bespeaks
a person who habitually, continually commits
crimes, benefits not at all from leniency which has
been extended in a number of ways and occasions as
is outlined in the [PSR], and that there is — one of
the most effectively demonstrated tendencies to
recidivate I have seen since I came on the bench in
1992.
J.A. 155.
The sentencing court then upwardly departed for a second
time, to a higher offense level. See USSG § 4A1.3(a)(4)(B)
(providing for upward departure if highest criminal history
• Three points for his 1983 assault and battery arrest;
• One point for his 1989 voluntary manslaughter conviction for
killing his pregnant wife (accounting for death of fetus);
• Two points for the February 1998 alien smuggling;
• Two points each for Rivera-Santana’s illegal reentries of Feb-
ruary 16, 1998, and March 1, 1998;
• One point for his 2000 DUI arrest;
• One point for the 2006 aggravated sexual assault of his grand-
daugther; and
• One point for a non-charged offense of driving without a
license in Virginia.
UNITED STATES v. RIVERA-SANTANA 7
category deemed insufficient). In so doing, the court allocated
one offense level for every three of the seventeen unscored
criminal history points, raising the offense level by five
levels, from 21 to 26. With a criminal history category of VI,
the second departure authorized the court to establish the
advisory Guidelines range at 120 to 150 months.
The district court then concluded, however, that "a sentence
of 120 to 150 months [was] not sufficient to punish the defen-
dant and to accomplish the objectives of the sentencing guide-
lines." J.A. 158. After considering the sentencing factors set
forth in 18 U.S.C. § 3553(a), the court decided that an upward
variance to the statutory maximum was warranted.6 In elabo-
rating on the § 3553(a) factors and in further justification for
a variance to the statutory maximum, the court explained:
This man has proved for years that he is a danger to
society. He has proved for years that he has no
respect for the law. He has proved for years that it
is necessary to take strong action to protect the pub-
lic. A man who will kill his wife, pregnant wife, and
kill his own child and molest his granddaughter has
no respect for the law and is a menace and . . . a
proven danger to the public, to the citizenry of the
nation that he has chosen on multiple occasions ille-
gally to invade, and when he comes here, he violates
all kinds of laws, any kind of law that stands in the
way of accomplishing what he wants to do.
6
The terms "variance" and "departure" describe two distinct sentencing
options available to a sentencing court. See Irizarry v. United States, 553
U.S. 708, 713-16 (2008). A departure is a sentence "imposed under the
framework set out in the Guidelines." Id. at 714. Conversely, a variance
has been recognized as a non-Guidelines sentence (either above or below
the properly calculated advisory Guidelines range) that is nevertheless
"justified under the sentencing factors set forth in 18 U.S.C. § 3553(a)."
Id. at 715.
8 UNITED STATES v. RIVERA-SANTANA
If he wants to gratify himself, he plunders an eight-
year-old child. If he wants to have some company or
make some money, he smuggles illegal aliens. He
gets deported, he comes right back. He drives drunk.
He steals, he beats. He is, in short, an anathema to
society.
J.A. 158.
Accordingly, the sentencing court concluded that, in order
to deter Rivera-Santana, properly protect the public, and pro-
mote respect for the law, it was obliged to vary upward to the
statutory maximum and impose a sentence of 240 months in
prison. The court entered its judgment order on October 8,
2010, and Rivera-Santana has timely appealed. We possess
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a).
II.
We review for reasonableness a sentence imposed by a dis-
trict court. See Gall v. United States, 552 U.S. 38, 46 (2007).
In undertaking such a review, "we must first ensure that the
district court committed no significant procedural error," such
as "failing to calculate (or improperly calculating) the Guide-
lines range, treating the Guidelines as mandatory, failing to
consider the [18 U.S.C.] § 3553(a) factors, selecting a sen-
tence based on clearly erroneous facts, or failing to adequately
explain the chosen sentence — including an explanation for
any deviation from the Guidelines range." United States v.
Diosdado-Star, 630 F.3d 359, 363 (4th Cir. 2011) (internal
quotation marks omitted). Absent a significant procedural
error, our next step is to assess the substantive reasonableness
of the sentence imposed. See id. In either event, a "deferential
abuse-of-discretion standard" applies to "any sentence,
whether inside, just outside, or significantly outside the
Guidelines range." See United States v. Savillon-Matute, 636
UNITED STATES v. RIVERA-SANTANA 9
F.3d 119, 122 (4th Cir. 2011) (internal quotation marks omit-
ted).
III.
Rivera-Santana maintains on appeal that his sentence is
both procedurally and substantively unreasonable. His proce-
dural challenges arise from three separate decisions made by
the sentencing court: (1) the upward departure under Guide-
lines section 4A1.3(a), departing from the PSR-recommended
Guidelines range of 57 to 71 months to an advisory Guide-
lines range of 77 to 96 months (the "criminal history category
departure"); (2) the upward departure under Guidelines sec-
tion 4A1.3(a)(4)(B), further departing to an advisory Guide-
lines range of 120 to 150 months (the "offense level
departure"); and (3) the upward variance, pursuant to 18
U.S.C. § 3553(a), resulting in the statutory maximum of 240
months. Rivera-Santana identifies four instances of proce-
dural error attributable to the two departures and the variance.
First, he suggests that the district court gave too much weight
to the illegal reentry guideline, Guidelines section 2L1.2, as
a foundation for its departures and variance. Second, Rivera-
Santana asserts that the court erred in making its upward
departures by relying on improper factors and in calculating
his offense level and criminal history points. Third, he posits
that, in departing, the sentencing court failed to apply an
incremental approach. And, fourth, he claims that the court
erred in basing its 90-month variance on the § 3553(a) factors,
without considering the relevant mitigating factors and the
need to avoid unwarranted sentencing disparities. Separately,
Rivera-Santana contends that his sentence is substantively
unreasonable because it is greater than necessary to achieve
the aims of sentencing and is essentially a life sentence, given
his age (55 years) and his health. We assess each of these con-
tentions in turn.
10 UNITED STATES v. RIVERA-SANTANA
A.
1.
Rivera-Santana first contends that his sentence is procedur-
ally unreasonable because the sixteen-level enhancement
authorized by the illegal reentry guideline, section 2L1.2, is
an "arbitrary" one. See Br. of Appellant 19. He argues that the
Sentencing Commission improperly adopted that specific
guideline, having failed to conduct adequate "empirical
studies or examination of past sentencing practices." Id. Addi-
tionally, Rivera-Santana asserts that the illegal reentry guide-
line’s sixteen-level enhancement constitutes a "weak base on
which to layer both a departure and a variance." Id. at 20.
Although a sentencing court may be entitled to consider
policy decisions underlying the Guidelines, including the
presence or absence of empirical data, see Kimbrough v.
United States, 552 U.S. 85, 107-10 (2007), it is under no obli-
gation to do so, see United States v. Mondragon-Santiago,
564 F.3d 357, 365–67 (5th Cir. 2009); accord United States
v. Lopez, 650 F.3d 952, 967 (3d Cir. 2011); see also United
States v. Perez-Frias, 636 F.3d 39, 43 (2d Cir. 2011) (con-
cluding that illegal reentry guideline was properly adopted by
Commission). Moreover, Rivera-Santana’s procedural chal-
lenge to the illegal reentry guideline rests on a faulty premise
— that any application of that guideline is "flawed" because
it impermissibly double counts a defendant’s prior criminal
record — first, in determining the offense level, and again in
calculating the criminal history score. See Br. of Appellant
19-20.
Recognizing that we have previously rejected such a
double-counting contention, see United States v. Crawford, 18
F.3d 1173, 1178-79 (4th Cir. 1994), Rivera-Santana objects
instead to what he characterizes as the "triple- or even
quadruple-counting" that purportedly occurred in this case
when the sentencing court made two upward departures and
UNITED STATES v. RIVERA-SANTANA 11
an upward variance after the illegal reentry guideline’s
sixteen-level enhancement had been applied. See Reply Br. of
Appellant 10-11. This nuanced objection is entitled to no
more mileage than its forerunner — the double-counting
objection that we rejected in Crawford. The sentencing court
committed no procedural error because the Guidelines do not
expressly prohibit the triple counting of Rivera-Santana’s
prior record. See Crawford, 18 F.3d at 1180-81 (affirming tri-
ple counting of different types of criminal history points for
same aggravated felony conviction); see also United States v.
Zuniga-Peralta, 442 F.3d 345, 347-48 (5th Cir. 2006) (affirm-
ing upward departure pursuant to Guidelines section 4A1.3 in
addition to twelve-level enhancement under illegal reentry
guideline). Nor did the court impermissibly count Rivera-
Santana’s extensive criminal record when it imposed the
upward variance justified under the § 3553(a) sentencing fac-
tors. Cf. United States v. Ventura, 650 F.3d 746, 751 (D.C.
Cir. 2011) (affirming upward variance from illegal reentry
guideline’s sixteen-level enhancement based on assessment of
§ 3553(a) factors); United States v. Guevas-Gomez, 61 F.3d
749, 750 (9th Cir. 1995) (concluding that "[n]othing in section
3553(b) or in the Guidelines suggests that the district court’s
departure authority does not extend to [the illegal reentry
guideline]").
2.
Rivera-Santana next contends that both of the district
court’s upward departures were procedurally defective
because: (1) the court erroneously relied on our decision in
United States v. Rybicki, 96 F.3d 754, 757-58 (4th Cir. 1996)
(establishing five-factor analysis for whether sentencing court
may depart), which he maintains is no longer controlling, due
to the Supreme Court’s decision in United States v. Booker,
543 U.S. 220 (2005); and (2) the court improperly augmented
his criminal history points by scoring prior arrests that were
dissimilar to the offense of conviction, see United States v.
Dixon, 318 F.3d 585, 591 n.5 (4th Cir. 2003) (affirming
12 UNITED STATES v. RIVERA-SANTANA
departure based on defendant’s prior arrests involving mis-
conduct similar to offense of conviction). Rather than assess
the extent to which Rybicki may be good law post-Booker,
and without deciding whether certain of Rivera-Santana’s
prior arrests (with no dispositions ascertained) could be
scored because they were sufficiently similar to the offense of
conviction, we are entitled to summarily reject this contention
because, even if we "assume that an error occurred[, it] is
harmless." See United States v. Savillon-Matute, 636 F.3d
119, 123 (4th Cir. 2011).
Although Rivera-Santana objected to the district court mak-
ing any upward departure from the PSR-recommended calcu-
lations, he nevertheless acknowledged that the court — acting
within its discretion — was authorized under the Guidelines
to elevate his criminal history category to VI by adding
twelve criminal history points for unscored prior offenses. See
J.A. 142. Rivera-Santana maintained, however, that the court
was entitled to make the first departure only, that is, the crimi-
nal history category departure that elevated his advisory
Guidelines range to 77 to 96 months. Having carefully
assessed this point, we discern no abuse of discretion in the
sentencing court’s decision that the advisory Guidelines range
of 77 to 96 months was inadequate. This decision was
soundly explained by the court, which identified a host of
supporting facts, including the extensive and serious nature of
Rivera-Santana’s criminal activities, his chronic recidivism,
his squandering of opportunities accorded by his lenient pun-
ishments, and the consequences of his most recent illegal
reentry. Indeed, the court emphasized that Rivera-Santana
was "one of the most dangerous people," with "one of the
most effectively demonstrated tendencies to recidivate," that
the court had ever sentenced. See J.A. 155.
In moving beyond the criminal history category departure
to the offense level departure, the sentencing court carefully
considered Rivera-Santana’s position that only twelve — as
opposed to seventeen — additional criminal history points
UNITED STATES v. RIVERA-SANTANA 13
could properly be scored. In fact, the court calculated the
offense level departure by allocating one offense level for
every three of those twelve points, which yielded an offense
level of 25 and an advisory Guidelines range of 110 to 137
months. The court alternatively performed the same calcula-
tion utilizing its determination that seventeen additional crim-
inal history points were justified, resulting in an offense level
of 26 and a Guidelines range of 120 to 150 months. Ulti-
mately, the court settled on and fixed the Guidelines range for
Rivera-Santana at 120 to 150 months.
Nevertheless, having endeavored to fashion an appropriate
sentence by way of its two departures, the court concluded
that the advisory Guidelines range of 120 to 150 months was
yet inadequate, and thus proceeded to implement an upward
variance to the 240-month statutory maximum. Hence, not-
withstanding the court’s consideration of the alternative
departure ranges, it is clear that the court would have imposed
the same upward variance to the statutory maximum —
whether from the Guidelines range of 110 to 137 months, or
from the court-ascertained Guidelines range of 120 to 150
months.7
7
In justification for its upward variance based on the § 3553(a) factors,
the sentencing court specifically found, inter alia, the following:
• Rivera-Santana had "proved for years that he is a danger to
society [and] has no respect for the law," in that he had "kill-
[ed] his wife, pregnant wife, and kill[ed] his own [unborn]
child and molest[ed] his granddaughter";
• Rivera-Santana was "a menace" and "a proven danger" to the
public and "to the citizenry of the nation that he ha[d] chosen
on multiple occasions illegally to invade";
• Rivera-Santana was willing to violate "any kind of law that
[stood] in the way of accomplishing what he want[ed] to do,"
from "gratify[ing] himself" with his eight-year-old grand-
daughter to "smuggl[ing] illegal aliens";
• Rivera-Santana had previously "been given leniency [and] all
kinds of breaks [which he failed to] take advantage of [choos-
ing instead to] thumb[ ] his nose at . . . society."
See J.A. 158-59.
14 UNITED STATES v. RIVERA-SANTANA
As a result, we are, in any event, entitled to affirm the sen-
tence imposed — assuming its substantive reasonableness —
because any procedural error that may have been made in cal-
culating either of the two departures would necessarily be
harmless. See Savillon-Matute, 636 F.3d at 123-24 (agreeing
that "it would make no sense to set aside a reasonable sen-
tence and send the case back to the district court since it has
already told us that it would impose exactly the same sen-
tence, a sentence we would be compelled to affirm" (internal
quotation marks and alteration omitted)).
3.
Rivera-Santana next contends that the district court proce-
durally erred by failing to employ the incremental approach
in its two upward departures. See United States v. Dalton, 477
F.3d 195, 199 (4th Cir. 2007) (requiring sentencing court to
"depart incrementally" in assessing upward departure from
highest criminal history category); see also United States v.
Rushner, 966 F.2d 868, 884 (4th Cir. 1992) (requiring sen-
tencing court to explain inadequacies of next higher criminal
history category before upwardly departing within existing
criminal history categories). Although Rivera-Santana recog-
nizes that the court was not required to "move only one level,
or to explain its rejection of each and every intervening level,"
see Dalton, 477 F.3d at 199 (internal quotation marks omit-
ted), he maintains that the court made no effort to consider
and reject any of the intervening levels between level 21 and
criminal history category IV, on the one hand, and level 26
and criminal history category VI, on the other.
As we have explained, a sentencing court is under no obli-
gation to "incant the specific language used in the guidelines,
or go through a ritualistic exercise in which it mechanically
discusses each criminal history category or offense level it
rejects en route to the category or offense level that it selects."
Dalton, 477 F.3d at 199 (citation, internal quotation marks,
and alterations omitted). In this case, however, it is apparent
UNITED STATES v. RIVERA-SANTANA 15
that the court employed a well-reasoned process — assigning
criminal history points for unscored offenses to move hori-
zontally to the highest criminal history category, then allocat-
ing one offense level for each group of three unscored
criminal history points to move vertically down the sentenc-
ing table to successively higher offense levels.8 Thus, the sen-
tencing court properly extrapolated from the structure and
methodology of the Guidelines in calibrating its upward
departures. See United States v. Terry, 142 F.3d 702, 707 (4th
Cir. 1998) (explaining that "sentencing court should first con-
sider the rationale and methodology of the Sentencing Guide-
lines" in deciding extent of departure). In this case, the court’s
methodology provided a sufficient explanation for the depar-
tures and the fact that the intervening levels were inappropri-
ate.
It bears repeating that, even if the sentencing court had
failed to utilize a proper incremental analysis, any procedural
error would be harmless because the upward variance based
on the § 3553(a) factors justified the sentence imposed. See
United States v. Evans, 526 F.3d 155, 165 (4th Cir. 2008).
The court acknowledged the advisory nature of the Guide-
lines, and it thoroughly discussed the relevant § 3553(a) fac-
tors: the serious nature of Rivera-Santana’s prior offenses,
particularly the murder of his pregnant wife and the sexual
8
Several of our sister circuits have approved similar methods for calcu-
lating an upward departure where the defendant has accumulated criminal
history points that exceed the number required to place him in the highest
criminal history category. See, e.g., United States v. Hurlich, 348 F.3d
1219, 1222-23 (10th Cir. 2003) (affirming eight offense level increase for
every three points above category VI); United States v. Gonzales-Ortega,
346 F.3d 800, 803 (8th Cir. 2003) (affirming departure of one offense
level for every three criminal history points above category VI); United
States v. Ewing, 129 F.3d 430, 437 (7th Cir. 1997) (same); see also United
States v. Cash, 983 F.2d 558, 561 n.6 (4th Cir. 1992) (approving departure
above category VI by moving vertically to higher offense levels to pro-
duce "roughly same 10-15% increase in guideline range" as moving hori-
zontally to higher criminal history category).
16 UNITED STATES v. RIVERA-SANTANA
assault of his eight-year-old granddaughter; his dogged defi-
ance and lack of respect for the law, having repeatedly reen-
tered the United States illegally after being deported, and then
committing further criminal offenses; Rivera-Santana’s ten-
dency to recidivate, which the sentencing judge found excep-
tional in his twenty years of judicial experience; the need for
deterrence, given Rivera-Santana’s failure to comply with the
law despite previous lenient punishments; and the need to
protect the public because he had no regard for his victims.
See United States v. Grubbs, 585 F.3d 793, 804 (4th Cir.
2009) (concluding that variance sentence "is procedurally rea-
sonable [where] the district court adequately explain[s] its
sentence on alternative grounds" by reference to § 3553(a)
factors).
4.
In the last of his four procedural contentions, Rivera-
Santana argues that the district court, in implementing the
variance, failed to consider any mitigating factors or the need
to avoid unwarranted sentencing disparities in weighing the
§ 3553(a) factors. As we have recognized, however, a sen-
tencing court need not "explicitly discuss" each factor "on the
record" or "robotically tick through § 3553(a)’s every subsec-
tion." See United States v. Johnson, 445 F.3d 339, 345 (4th
Cir. 2006) (internal quotation marks omitted). Although we
are obliged to carefully scrutinize a court’s reasoning for a
sentence outside the advisory Guidelines range, we will credit
an articulation as "clear and appropriate," when the reasons
"can be matched to a factor appropriate for consideration" and
tailored to the defendant’s situation. See United States v.
Moulden, 478 F.3d 652, 658 (4th Cir. 2007). In this situation,
it is evident that the court deemed the factors argued in miti-
gation, such as Rivera-Santana’s age and health problems, as
entirely insufficient to outweigh the aggravating factors. And
it was well within the court’s discretion to accord more
weight to the host of aggravating factors and decide that the
sentence imposed would serve "the § 3553 factors, on a
UNITED STATES v. RIVERA-SANTANA 17
whole." See Gall v. United States, 552 U.S. 38, 51 (2007); see
also United States v. Jeffery, 631 F.3d 669, 679 (4th Cir.
2011) (observing that "district courts have extremely broad
discretion when determining the weight to be given each of
the § 3553(a) factors").
Likewise, we are satisfied that the district court, in fashion-
ing its sentence, considered "the need to avoid unwarranted
sentencing disparities among defendants with similar records
who have been found guilty of similar conduct." See 18
U.S.C. § 3553(a)(6). During the sentencing colloquy, the
court repeatedly emphasized that this was an atypical case and
that, given Rivera-Santana’s criminal history, he constituted
an "anathema to society." See J.A. 158. As we have previ-
ously explained,
[w]e will not vacate [a] sentence simply because the
court did not spell out what the context of its expla-
nation made patently obvious: namely, that a shorter
prison term was inappropriate for a defendant who
had repeatedly committed a serious offense and who
had already proven immune to other means of deter-
rence.
United States v. Montes-Pineda, 445 F.3d 375, 381 (4th Cir.
2006); see also United States v. Pergola, 930 F.2d 216, 220
(2d Cir. 1991) ("Implicit in any statement that the maximum
is required is the thought that anything less would be insuffi-
cient.").
In pursuing this contention, Rivera-Santana relies on vari-
ous sentencing statistics and authorities that are entirely
unconvincing. Courts have repeatedly made clear that com-
parisons of sentences may be treacherous because each sen-
tencing proceeding is inescapably individualized or because
some defendants possess, as here, a demonstrated propensity
for criminal activity that is almost unique in its dimensions.
See United States v. Abu Ali, 528 F.3d 210, 267 (4th Cir.
18 UNITED STATES v. RIVERA-SANTANA
2008) (comparisons with other defendants’ sentences are
unavailing if those defendants have dissimilar circumstances
and histories); United States v. Irving, 554 F.3d 64, 76 (2d
Cir. 2009) (observing that "averages of sentences that provide
no details . . . are unreliable to determine unwarranted dispar-
ity because they do not reflect the enhancements or adjust-
ments for the aggravating or mitigating factors that
distinguish individual cases" (quoting United States v. Wil-
lingham, 497 F.3d 541, 544 (5th Cir. 2007))). Even if Rivera-
Santana’s sentence is more severe than average, that fact does
not mean that it was unwarranted. Put succinctly, we are
unwilling to isolate a possible "sentencing disparity to the
exclusion of all the other § 3553(a) factors." See United States
v. Winters, 416 F.3d 856, 861 (8th Cir. 2005) (affirming statu-
tory maximum notwithstanding defendant’s contention that it
created sentencing disparity); see also United States v.
Richart, 662 F.3d 1037, 1049-50 (8th Cir. 2011) (same).
B.
Finally, Rivera-Santana contends that his 240-month sen-
tence is substantively unreasonable, arguing that it is greater
than necessary to achieve the aims of § 3553(a). In pursuing
this contention, he emphasizes the degree of the variance (90
months above the advisory Guidelines range), and maintains
that it actually amounts to a life sentence, given his age and
poor health. That a variance sentence deviates significantly
from the advisory Guidelines range, however, does not alone
render it presumptively unreasonable. See Abu Ali, 528 F.3d
at 261. Indeed, "a sentence that deviates from the Guidelines
is reviewed under the same deferential abuse-of-discretion
standard as a sentence imposed within the applicable guide-
lines range." Id. Put simply, the sentencing court’s decision to
vary upward to the statutory maximum reflects a thorough,
individualized assessment of Rivera-Santana’s situation, in
light of the § 3553(a) factors. Because the court did not abuse
its discretion, we are obliged to accord deference to its sen-
tencing decisions. See United States v. Diosdado-Star, 630
UNITED STATES v. RIVERA-SANTANA 19
F.3d 359, 367 (4th Cir. 2011) (affirming sentence six years
above advisory Guidelines range where court properly
explained its decision pursuant to § 3553(a) factors); Evans,
526 F.3d at 165-66 (upholding reasonableness of sentence
eight years above advisory Guidelines range where court pro-
vided ample reasons why § 3553(a) factors, "on the whole,
justified the sentence"). In these circumstances, therefore, the
240-month sentence imposed on Rivera-Santana is substan-
tively reasonable and must be affirmed.
IV.
Pursuant to the foregoing, we reject each of Rivera-
Santana’s appellate contentions and affirm.
AFFIRMED