United States v. Carlos Hernandez

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4561
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CARLOS ENRIQUE HERNANDEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:11-cr-00300-REP-1)
Submitted: March 20, 2013 Decided: April 4, 2013
Before MOTZ, DUNCAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Nia Ayanna
Vidal, Assistant Federal Public Defender, Caroline S. Platt,
Appellate Attorney, Richmond, Virginia, for Appellant. Neil H.
MacBride, United States Attorney, Brian R. Hood, Assistant
United States Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Carlos Enrique Hernandez, a citizen of El Salvador,
pled guilty based on a written statement of facts to one count
of illegal re-entry of an aggravated felon, in violation of 8
U.S.C. §§ 1326(a), (b)(2) (2006). Hernandez asserts that his
sentence should be vacated because he argues that the district
court abused its discretion when it imposed an upward departure
sentence based on the underrepresentation of his criminal
history score, and that an upward variance was unnecessary
because there was “nothing egregious about the facts of []his
case [to] warrant such an extreme degree of harshness in
sentencing.” Hernandez also asserts that the district court
plainly erred when it imposed a three-year term of supervised
release because the Guidelines recommend against it, and because
he asserts that the district court failed to explain why such a
term was necessary. Finding no error, we affirm.
We review any criminal sentence, “whether inside, just
outside, or significantly outside the Guidelines range,” for
reasonableness, “under a deferential abuse-of-discretion
standard.” United States v. King, 673 F.3d 274, 283 (4th Cir.),
cert. denied, 133 S. Ct. 216 (2012); see Gall v. United States,
552 U.S. 38, 51 (2007). The first step in this review requires
us to ensure that the district court committed no significant
procedural error. United States v. Evans, 526 F.3d 155, 161
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(4th Cir. 2008). Procedural errors include “failing to
calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the
[18 U.S.C.A.] § 3553(a) [(West 2000 & Supp. 2012)] 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.” Gall,
552 U.S. at 51.
“[I]f a party repeats on appeal a claim of procedural
sentencing error . . . which it has made before the district
court, we review for abuse of discretion” and will reverse
unless we conclude “that the error was harmless.” United States
v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010). For instance, if
“an aggrieved party sufficiently alerts the district court of
its responsibility to render an individualized explanation” by
drawing arguments from § 3553 “for a sentence different than the
one ultimately imposed,” the party sufficiently “preserves its
claim.” Id. at 578. However, we review unpreserved non-
structural sentencing errors for plain error. Id. at 576-77.
If, and only if, this court finds the sentence procedurally
reasonable can it consider the substantive reasonableness of the
sentence imposed. United States v. Carter, 564 F.3d 325, 328
(4th Cir. 2009).
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Because Hernandez requested a within-Guidelines
sentence, we review his seventy-two-month sentence for an abuse
of discretion. King, 673 F.3d at 283. When the district court
imposes a departure or variant sentence, we 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 divergence from the sentencing range.” United
States v. Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir.
2007). The district court “has flexibility in fashioning a
sentence outside of the Guidelines range,” and need only “‘set
forth enough to satisfy the appellate court that it has
considered the parties’ arguments and has a reasoned basis’” for
its decision. United States v. Diosdado-Star, 630 F.3d 359, 364
(4th Cir. 2011) (quoting Rita v. United States, 551 U.S. 338,
356 (2007)) (brackets omitted).
“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.” Gall,
552 U.S. at 51. “This deference is due in part because the
sentencing judge is in a superior position to find facts and
judge their import and the judge sees and hears the evidence,
makes credibility determinations, has full knowledge of the
facts and gains insights not conveyed by the record.” Diosdado-
Star, 630 F.3d at 366 (internal quotation marks, brackets and
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citations omitted); see Rita, 551 U.S. at 357–58 (recognizing
that the district court “has access to, and greater familiarity
with, the individual case and the individual defendant before
[the court] than the Commission or the appeals court”).
Moreover, when “a district court offers two or more
independent rationales for its deviation [from the Guidelines
range], an appellate court cannot hold the sentence unreasonable
if the appellate court finds fault with just one of these
rationales.” Evans, 526 F.3d at 165. “Picking through the
district court’s analysis in that manner would be wholly
inconsistent with the Supreme Court’s directives to examine the
‘totality of the circumstances,’ and to defer to the considered
judgment of the district court.” Id. (citations omitted). We
have reviewed the record and have considered the parties’
arguments and discern no error in the district court’s decision
to impose an upward departure sentence based on Hernandez’s
under-representative criminal history. See U.S. Sentencing
Guidelines Manual (“USSG”) § 4A1.3(a) (2011); see also United
States v. Dixon, 318 F.3d 585, 588-89 (4th Cir. 2003) (noting
that under-representative criminal history category “is an
encouraged basis for departure”).
We also discern no error in the district court’s
decision to impose an upward variant sentence. To the contrary,
the district court explicitly considered several § 3553(a)
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factors, including: (1) the nature and circumstances of
Hernandez’s offense; (2) the need to afford adequate deterrence
to his criminal conduct; and (3) the need to protect the public
from Hernandez’s future crimes. 18 U.S.C. § 3553(a). Because
the district court identified multiple reasons for its variance,
all of which were based on the § 3553(a) factors and related to
the particular facts of Hernandez’s case, we conclude that the
variance is reasonable. See King, 673 F.3d at 284 (concluding
that upward variant sentence was reasonable as it was adequately
supported by reference to those § 3553(a) factors that “the
court determined required the sentence ultimately imposed”);
Diosdado-Star, 630 F.3d at 366-67 (holding that an upward
variant sentence six years longer than the Guidelines range was
substantively reasonable because the district court expressly
relied on several of the § 3553(a) factors to support the
variance).
We also discern no error in the district court’s
imposition of a three-year term of supervised release. Because
Hernandez did not object regarding the imposition of his three-
year supervised release term, we review that portion of his
sentence for plain error. Lynn, 592 F.3d at 576-77. To
establish plain error, Hernandez must show: (1) there was
error; (2) the error was plain; and (3) the error affected his
substantial rights. United States v. Olano, 507 U.S. 725, 732
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(1993). Generally, for an error to affect a defendant’s
substantial rights, it must be prejudicial, meaning “there must
be a reasonable probability that the error affected the
outcome[.]” United States v. Marcus, 130 S. Ct. 2159, 2164
(2010). In the sentencing context, an error affects substantial
rights only if the defendant can show that the sentence imposed
was longer than the sentence he would have received without the
error. United States v. Hughes, 401 F.3d 540, 548 (4th Cir.
2005). We may exercise our discretion to correct the error only
if we are convinced that the error “seriously affect[s] the
fairness, integrity or public reputation of judicial
proceedings.” Olano, 507 U.S. at 732 (internal quotation marks
omitted).
Hernandez asserts that the district court plainly
erred because he failed to consider that, under USSG § 5D1.1(c)
(2011), a district court “ordinarily should not impose a term of
supervised release in a case in which supervised release is not
required by statute and the defendant is a deportable alien who
likely will be deported after imprisonment.” According to
Hernandez, the district court was at least obligated to provide
some explanation for imposing the maximum available term.
We have reviewed the record and conclude that the
district court considered the particular facts and circumstances
of Hernandez’s case and found that an added measure of
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deterrence was needed, especially because of Hernandez’s gang
affiliation. The district court also explicitly indicated that
it believed the three-year supervised release term should be
sufficient to keep Hernandez out of the United States and to
protect the public from his crimes. Because the district court
considered the facts and circumstances of Hernandez’s case in
determining his supervised release term, we conclude that its
explanation was adequate and, thus, discern no error in the
district court’s imposition of a three-year-term of supervised
release.
Based on the foregoing, 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 this court and argument would not aid the decisional
process.
AFFIRMED
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