United States v. Lazaro Gutierrez-Bustos

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4599
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LAZARO GUTIERREZ-BUSTOS, a/k/a Lazaro Bustos,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Thomas D. Schroeder,
District Judge. (1:08-cr-00373-TDS-1)
Submitted: October 28, 2011 Decided: December 5, 2011
Before NIEMEYER and GREGORY, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Eugene E. Lester, III, SHARPLESS & STAVOLA, PA, Greensboro,
North Carolina, for Appellant. Ripley Rand, United States
Attorney, Terri-Lei O’Malley, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lazaro Gutierrez-Bustos pled guilty to one count of
illegal reentry of a deported alien who had previously been
convicted of an aggravated felony in violation of 8 U.S.C.
§ 1326(a), (b)(2) (2006). The district court sentenced him to
eighty-two months’ imprisonment and he now appeals. Finding no
error, we affirm.
Gutierrez-Bustos challenges the district court’s
imposition of a departure sentence pursuant to U.S. Sentencing
Guidelines Manual (“USSG”) § 4A1.3 (2008). We review a sentence
for reasonableness, applying an abuse of discretion standard.
Gall v. United States, 552 U.S. 38, 51 (2007); see also United
States v. Layton, 564 F.3d 330, 335 (4th Cir. 2009). In so
doing, we first examine the sentence for “significant procedural
error,” including “failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the [18 U.S.C.] § 3553(a)
[(2006)] factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen
sentence . . . .” Gall, 552 U.S. at 51. Finally, this court
considers the substantive reasonableness of the sentence,
“tak[ing] into account the totality of the circumstances,
including the extent of any variance from the Guidelines range.”
Id.2
When reviewing a departure, 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). Under USSG § 4A1.3(a)(1), “[i]f reliable information
indicates that the defendant’s criminal history category
substantially under-represents the seriousness of the
defendant’s criminal history or the likelihood that the
defendant will commit other crimes, an upward departure may be
warranted.” We have thoroughly reviewed the record and conclude
that the district court’s decision to upwardly depart was
reasonable, the extent of the departure is reasonable and
supported by the record, and the court adequately explained both
its decision to depart and the extent of its departure. See
United States v. Lawrence, 349 F.3d 724, 727-28 (4th Cir. 2003).
Finally, we find Gutierrez-Bustos’ assertion that the district
court should have departed downward sua sponte on the basis of
cultural assimilation to be without merit.
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
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before the court and argument would not aid the decisional
process.
AFFIRMED
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