US v. Salomon Arias, No. 12-4359 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4359 UNITED STATES OF AMERICA, Plaintiff Appellee, v. SALOMON PASILLAS ARIAS, Salomon Pasillas-Arias, Salomon Pasillas, a/k/a a/k/a Mon Pacheco Ruis, Javier Dela-Cruz, a/k/a a/k/a Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Catherine C. Eagles, District Judge. (1:11-cr-00401-CCE-1) Submitted: January 31, 2013 Decided: February 12, 2013 Before DUNCAN, KEENAN, and FLOYD, Circuit Judges. Affirmed by unpublished per curiam opinion. Louis C. Allen, III, Federal Public Defender, Mireille P. Clough, Assistant Federal Public Defender, Winston-Salem, North Carolina, for Appellant. Ripley Rand, United States Attorney, Angela H. Miller, Assistant United States Attorney, Elizabeth Choi, Third Year Law Student, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Salomon Pasillas Arias, a native and citizen of Mexico, pled guilty pursuant to a written plea agreement to one count of illegal convicted (b)(1) of a reentry of a deported felony in violation The court imposed (2006). of a alien 8 U.S.C. departure sentence of twenty-four months imprisonment. appeals, contending that the after sentence was being §§ 1326(a), or variance Pasillas Arias unreasonable. We affirm. This court reviews a sentence imposed by a district court for reasonableness, discretion standard. 95, 100 (4th (internal a deferential abuse-of- United States v. Rivera-Santana, 668 F.3d Cir.), quotation applying cert. marks denied, omitted). 133 S. The Ct. first 274 step (2012) in our review requires us to ensure that the district court did not commit significant calculating factors the under procedural guidelines 18 U.S.C. error, range, § 3553(a) adequately explain the sentence. F.3d 325, 328 (4th Cir. 2009). such failing (2006), as to or improperly consider failing the to United States v. Carter, 564 We then review the sentence for substantive reasonableness, taking into account the totality of the circumstances. See United States v. Strieper, 666 F.3d 288, 292, 295 (4th Cir. 2012). 2 Pasillas Arias contends that the court erred procedurally in departing upward based on an inadequate criminal history category because the court failed to use the step-by-step approach set forth in United States v. Rusher, 966 F.2d 868 (4th Cir. 1992), and jumped directly from a category III to category V. obligation to However, a sentencing court is under no 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. Rivera-Santana, 668 F.3d at 104 (quoting United States v. Dalton, 477 F.3d 195, 199 (4th Cir. 2007)). even if the incremental because sentencing analysis, the upward court any failed procedural variance based justified the sentence imposed. Here the court to error on the Further, utilize would a be § 3553(a) proper harmless factors Id. at 104. expressly found that even if the departure was not procedurally sound, the court would still vary upward to the same effect because of the deportations, the repeated breaking of the law and the need to protect the public from future crime. sentence is (J.A. 65). procedurally adequately explained supporting a variance its We have held that a resulting reasonable sentence sentence, 3 by [if] on the district alternative reference to 18 court grounds U.S.C. § 3553(a). United States v. Grubbs, 585 F.3d 793, 804 (4th Cir. 2009). Here, the district court found that Pasillas Arias criminal history category was substantially underrepresented and that category V was more appropriate, taking into account his two prior deportations, conviction after his repeated felony speeding death and by motor traffic offenses, numerous uncounted misdemeanors and infractions. district court made an alternative sentence under § 3553(a) was finding appropriate, vehicle and Because the that a after variance specifically considering the nature and circumstances of the offense, the prior deportations, the repeated breaking of the law and the need to protect the public from future crime, we find that the sentence was procedurally reasonable. Pasillas Arias next argues that his sentence, which was eight months above the high end of the advisory guidelines range, was substantively unreasonable factors present in his case. given the mitigating A sentencing court must impose a sentence sufficient, but not greater than necessary, to comply with the purposes § 3553(a). set Even forth if we in would [§ 3553(a)(2)]. have reached 18 a U.S.C. different sentencing result on our own, this fact alone is insufficient to justify reversal of the district 4 court. United States v. Pauley, 511 F.3d 468, 474 (4th Cir. 2007) (internal quotation marks omitted). The parties district court both addressing considered arguments mitigating and from the aggravating circumstances, and specifically noted Pasillas Arias repeated deportations, repeated violations of the law, and the need to protect the public. The court observed that the many misdemeanors and infractions were not accounted for in Pasillas Arias original traffic sentence violations calculation, eventually led to and a that the conviction death by motor vehicle involving alcohol. list of of felony The court emphasized the need to protect the public from future criminal activity. As such, we find that the court sufficiently referenced the § 3553(a) factors, and conclude that the resulting sentence was substantively reasonable. Accordingly, we affirm the judgment of the district court. legal before We dispense with oral argument because the facts and contentions this court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 5
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