United States v. De La Rosa , 184 F. App'x 349 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4778
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RAFAEL RADHAMES DE LA ROSA,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan, Chief
District Judge. (CR-05-11)
Submitted: May 31, 2006 Decided: June 9, 2006
Before NIEMEYER, MICHAEL, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Diana H. Cap, Research and
Writing Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh,
North Carolina, for Appellant. Frank D. Whitney, United States
Attorney, Anne M. Hayes, Assistant United States Attorney, Jennifer
May-Parker, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Rafael Radhames De La Rosa pled guilty to illegal reentry
after deportation. See 8 U.S.C. §§ 1326(a) and (b)(2). The
district court sentenced him to 52 months imprisonment. De La Rosa
now appeals his sentence. For the reasons outlined below, we
affirm.
I.
The underlying facts are not in dispute. De La Rosa, a native
and citizen of the Dominican Republic, was deported from the United
States in 1997, after serving a sentence for his conviction of
conspiracy to distribute cocaine. Sometime thereafter, De La Rosa
reentered the United States illegally. In November 2003, De La Rosa
was arrested in Wake County, North Carolina, and charged with,
among other things, possession of cocaine and driving while
impaired. De La Rosa subsequently pled guilty to driving while
impaired. Following his conviction in state court, federal
immigration officials arrested De La Rosa and charged him with
illegal reentry. De La Rosa pled guilty to this offense.
The United States Probation Office prepared a Presentence
Investigation Report (PSR) for the district court. The PSR
correctly calculated De La Rosa’s base offense level as 8 and then
added 16 levels, because he had previously been convicted of a
felony drug trafficking offense, yielding a total offense level of
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24. Deducting 3 levels for acceptance of responsibility, and
applying De La Rosa’s category III criminal history, the PSR
calculated an advisory Guidelines range of 46-57 months.
Although De La Rosa did not object to the calculations in the
PSR, De La Rosa urged the district court to “depart” from the
advisory Guidelines range and issue a variance (non-Guidelines)
sentence. In so doing, De La Rosa argued that his Guidelines range
created unwarranted disparity among defendants, because Virginia is
a non-“fast track” district, where defendants receive higher
sentences than similarly situated defendants in “fast track”
districts.1 Emphasizing the need to provide just punishment for
the offense, to deter criminal conduct, and to protect the public
from a defendant who demonstrates a “propensity to commit [drug]
1
Congress authorized fast-track programs as part of the 2003
Prosecutorial Remedies and Other Tools to End the Exploitation of
Children Today (PROTECT) Act. See Pub. L. No. 108-21, §
401(m)(2)(B), 117 Stat. 650, 675 (2003). Specifically, the PROTECT
Act directs the United States Sentencing Commission to promulgate
a policy statement “authorizing a downward departure of not more
than 4 levels if the Government files a motion for such departure
pursuant to an early disposition program authorized by the Attorney
General and the United States Attorney.” Id. Accordingly, the
Sentencing Commission adopted U.S.S.G. § 5K3.1, which provides
that, “[u]pon a motion by the Government, the district court may
depart by up to 4 levels pursuant to an early disposition program
authorized by the Attorney General of the United States and the
United States Attorney for the district in which the court
resides.” Fast track sentencing programs are utilized by federal
prosecutors in states in close proximity to the Mexican border, who
are inundated with illegal reentry cases. See United States v.
Morales-Chaires, 430 F.3d 1124, 1127 (10th Cir. 2005).
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crimes,” J.A. 57, the district court rejected De La Rosa’s request
and sentenced him to 52 months in prison. De La Rosa timely
appealed.
II.
In imposing a sentence after Booker, the district court must
engage in a two-step process. First, the court must correctly
calculate the sentencing range prescribed by the Guidelines.
United States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005).
Second, the court must consider whether this advisory sentencing
range “serves the factors set forth in § 3553(a) and, if not,
select a sentence that does serve those factors.” United States v.
Green, 436 F.3d 449, 456 (4th Cir. 2006). In applying the second
step, “the district court should first look to whether a departure
is appropriate based on the Guidelines Manual or relevant case
law.” United States v. Moreland, 437 F.3d 424, 433 (4th Cir.
2006). In other words, if the district court, in considering the
advisory Guideline range in conjunction with the § 3553(a) factors,
believes that an adjustment is warranted, the court should first
turn to specific departure provisions in the Guidelines to resolve
the issue.2 See id. If the resulting departure range does not
2
For instance, if the district court is concerned with whether
the advisory sentencing range is appropriate given a defendant’s
medical condition, see 18 U.S.C. § 3553(a)(2)(D), the court should
first look to U.S.S.G. § 5H1.4, which provides a mechanism for
departing downward on this basis.
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address the court’s concerns, or if there is no specific Guidelines
departure provision on point, the district court may then impose a
non-Guidelines or variance sentence. See id.
De La Rosa contends that his sentence is “unreasonable, and,
when viewed in the totality of the circumstances, does not
accomplish the purposes of sentencing put forth in 18 U.S.C. §
3553(a).” Appellant’s Br. at 6. The Government responds that this
court lacks jurisdiction over De La Rosa’s claim that his sentence
was unreasonable because the district court refused to depart
downwardly under the Guidelines. Alternatively, the Government
argues that the sentence is reasonable. We will address the
jurisdictional and reasonableness issues in turn.
A.
The Government argues that because the district court
exercised its discretion in denying De La Rosa’s motion for a
downward departure, this court lacks jurisdiction to review the
sentence. As this court recently recognized, “traditional
departures--i.e., those made pursuant to specific guideline
provisions or case law remain an important part of sentencing even
after Booker.” United States v. Moreland, 437 F.3d 424, 433 (4th
Cir. 2006) (internal quotation marks omitted). Thus, post-Booker,
a district court may still grant traditional upward or downward
departures if it finds aggravating or mitigating factors of a kind
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or degree that the Sentencing Commission did not consider relevant
to the “heartland” of cases. United States v. Hampton, 441 F.3d
284, 287 n.1 (4th Cir. 2006).
Where the district court is aware of its authority to depart
under a specific Guidelines provision, but exercises its discretion
not to depart, we lack jurisdiction to review that portion of the
sentencing decision.3 See United States v. Wood, 378 F.3d 342, 351
n.8 (4th Cir. 2004); United States v. Bayerle, 898 F.2d 28, 30-31
(4th Cir. 1990). However, because a Guidelines analysis is only
one facet of the post-Booker sentencing process, we are not
precluded from reviewing other aspects of the sentencing
determination. Thus, even where the district court exercises its
discretion not to depart under a traditional Guidelines provision,
we retain jurisdiction to review the overall reasonableness of the
sentence.
In arguing that this court lacks jurisdiction to review the
sentence, the Government mischaracterizes De La Rosa’s motion.
After carefully reviewing the record, we conclude that De La Rosa
did not move for a traditional Guidelines departure. Instead, De
La Rosa argued that a careful consideration of the statutory
factors--particularly the need to avoid sentencing disparities--
3
In the example provided in note 2, supra, if the district
court determined that a defendant’s medical condition did not
warrant a Guidelines departure under U.S.S.G. § 5H1.4, we could not
review that aspect of the sentencing determination.
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warranted a non-Guidelines sentence. Simply put, De La Rosa moved
for a variance, rather than a traditional departure. The district
court recognized as much when it inquired of De La Rosa’s counsel
as follows:
The Court: Counsel for De La Rosa, have I heard all
your arguments in furtherance--I interpret this as a
motion for a variance--have I heard all of your arguments
that you wish to make that are related to your position,
De La Rosa’s Memorandum and argued today?
Mr. Craven: Your honor, we would ask that the Court
take or accept the sentencing memorandum as a motion for
a variance.
J.A. 48-49. Accordingly, we are not precluded from reviewing any
aspect of the sentencing determination in this case.4
B.
Because the district court imposed a sentence within the
properly calculated advisory Guidelines range, the sentence is
entitled to a rebuttable presumption of reasonableness. Moreland,
437 F.3d at 433. A defendant can rebut a presumption by
demonstrating that the sentence is unreasonable in light of the §
3553(a) factors. United States v. Montes-Pineda, __F.3d__, No. 05-
4471, 2006 U.S. App. LEXIS 10178, at *2 (4th Cir. April 24, 2006).
4
Although the Government also briefly argues that we lack
jurisdiction to review the sentence for unreasonableness because it
falls within the advisory Guidelines range, that argument is
foreclosed by our recent decision in United States v. Montes-
Pineda, __F.3d__, No. 05-4471, 2006 U.S. App. LEXIS 10178, at *2
(4th Cir. April 24, 2006).
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After assessing this Guidelines sentence in light of the §
3553(a) factors, we conclude that it is reasonable. As we recently
observed, “[t]he re-entry of an ex-felon is a serious offense for
which Congress has seen fit to impose a statutory maximum sentence
of 20 years.” Id. (citing 8 U.S.C. § 1326(b)(2)). Further, as the
district court duly noted, De La Rosa has a substantial drug-
related criminal history and has demonstrated an unwillingness to
remain outside of the United States. In short, the sentence, which
is within the middle of the advisory Guidelines range, serves the
district court’s stated interest in providing just punishment for
the offense, providing adequate deterrence, and protecting the
public from future harm. See U.S.C. § 3553(a)(1).
De La Rosa’s argument that his sentence creates unwarranted
sentencing disparity among defendants, see 18 U.S.C. § 3553(a)(6),
because Virginia is a non-“fast track” jurisdiction is foreclosed
by our decision in Montes-Pineda. In that case, we noted that
although sentencing disparities may exist between fast track and
non-fast track jurisdictions, a general disparity allegation is
insufficient to compel a non-guidelines sentence, especially where
the majority of § 3553(a) factors are best served by a Guidelines
sentence. Montes-Pineda, 2006 U.S. App. LEXIS 10178, at *3 (“It
would be especially inappropriate to impose such a general
requirement on the district courts in non-‘fast track’ districts,
given that Congress seems to have endorsed at least some degree of
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disparity by expressly authorizing larger downward departures for
defendants in ‘fast track’ districts.”).
In sum, we conclude that because the district court properly
treated the Guidelines as advisory, and properly considered the
Guidelines range in conjunction with the relevant statutory
factors, the sentence is reasonable.
III.
For the foregoing reasons, we affirm the sentence imposed by
the district court. 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 in the
decisional process.
AFFIRMED
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