United States v. Garcia-Maeda , 260 F. App'x 582 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4432
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ENRIQUE GARCIA-MAEDA, a/k/a Manuel Estrada
Montonyo,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (4:06-cr-00044-F)
Submitted: December 21, 2007 Decided: January 7, 2008
Before WILKINSON and GREGORY, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney, Anne M.
Hayes, Banumathi Rangarajan, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Enrique Garcia-Maeda appeals the sentence imposed after
he pleaded guilty to illegal reentry by an aggravated felon, in
violation of 8 U.S.C. § 1326 (2000). Upon motion by the
Government, the district court determined that Garcia-Maeda’s
criminal history was substantially under—represented and departed
upward from the advisory Sentencing Guidelines range and imposed a
sentence of fifty-seven months of imprisonment. We affirm.
Garcia-Maeda contends that the district court’s decision
to depart upward was unreasonable because his criminal history
consists mostly of minor offenses, apart from his most recent state
court conviction. Garcia-Maeda also argues that the extent of the
departure was unreasonable because it was almost one-third higher
than the high end of the Guidelines range established in the
presentence report (PSR).* Finally, Garcia-Maeda contends that the
district court did not properly balance the factors in 18 U.S.C.A.
§ 3553(a) (West 2000 & Supp. 2007) and, instead, focused almost
exclusively on his criminal history. After United States v.
Booker, 543 U.S. 220 (2005), a district court is no longer bound by
the sentencing range prescribed by the Guidelines. A district
court’s decision to depart from the advisory Guidelines is reviewed
for reasonableness, and the resulting sentence must be based upon
*
Garcia-Maeda argues that the departure takes away any benefit
he received for acceptance of responsibility.
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the factors set forth in 18 U.S.C. § 3553(a) (2000). United States
v. Dalton, 477 F.3d 195, 197 (4th Cir. 2007). Reasonableness
review entails review for abuse of discretion. See Rita v. United
States, 127 S. Ct. 2456, 2465 (2007). In reviewing a sentence
outside the Guidelines range, this court must “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 guideline range.” United States v.
Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir. 2007) (applying
rule in context of variance sentence). A sentence is unreasonable
if the “court provides an inadequate statement of reasons or relies
on improper factors in imposing a sentence outside the properly
calculated advisory sentencing range.” (Id.). “The district court
need not discuss each factor set forth in § 3553(a) in checklist
fashion; it is enough to calculate the range accurately and explain
why (if the sentence lies outside it) this defendant deserves more
or less.” United States v. Moreland, 437 F.3d 424, 432 (4th
Cir.)(citation and internal quotes omitted) (variance sentence),
cert. denied, 126 S. Ct. 2054 (2006).
A district court may depart upward from the Guidelines
range under U.S. Sentencing Guidelines Manual § 4A1.3 (2005) when
“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
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defendant will commit other crimes.” USSG § 4A1.3(a)(1). The
guideline further directs that “[i]n a case in which the court
determines that the extent and nature of the defendant’s criminal
history, taken together, are sufficient to warrant an upward
departure from Criminal History Category VI, the court should
structure the departure by moving incrementally down the sentencing
table to the next higher offense level in Criminal History Category
VI until it finds a guideline range appropriate to the case.” USSG
§ 4A1.3(a)(4)(B). Commentary to the guideline states that, “[i]n
determining whether an upward departure from Criminal History
Category VI is warranted, the court should consider that the nature
of the prior offenses rather than simply their number is often more
indicative of the seriousness of the defendant’s criminal record.”
USSG § 4A1.3, comment. (n.2(B)).
We conclude that the upward departure was reasonable with
regard to both the decision to depart and the extent of the
divergence from the Guidelines range. The district court correctly
found that Garcia-Maeda’s criminal history was under—represented.
Garcia-Maeda has far more prior convictions than necessary to place
him in Criminal History Category VI, indicating that a departure
was warranted based upon both the nature of Garcia-Maeda’s most
recent prior offense and the number and consistent history of
convictions. The district court’s reasoning is certainly not
specific or detailed; however, it is clear from the record that the
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court was persuaded that Garcia-Maeda’s criminal history was
under—represented, a permissible basis for departure under USSG
§ 4A1.3(a)(1).
The court properly proceeded to move incrementally down
the sentencing table to higher offense levels in Criminal History
Category VI, determining that each level did not impose an adequate
sentence until it reached offense level 16. See Dalton, 477 F.3d
at 199. Applying level 16, the court imposed a sentence of 57
months of imprisonment. The overall sentence imposed reasonably
reflects Garcia-Maeda’s extensive criminal history, which was not
adequately reflected by the Guidelines sentence at offense level
13. The extent of the divergence between the sentence actually
imposed, 57 months, from the highest sentence available under the
guidelines range for offense level 13, 41 months, was 16 months, an
upward divergence of approximately one-third. Although the
district court did not elaborate on the § 3553(a) factors in
checklist fashion, the court adequately stated that it had
considered those factors and properly explained its decision to
depart upward based upon Garcia-Maeda’s under—represented criminal
history.
We therefore find the district court’s upward departure
was not an abuse of discretion and affirm the sentence. We
dispense with oral argument because the facts and legal contentions
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are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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