US v. David Amezquita-Franco, No. 12-4785 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4785 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DAVID AMEZQUITA-FRANCO, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, District Judge. (3:12-cr-00052-JRS-1) Submitted: March 29, 2013 Decided: May 1, 2013 Before DAVIS, KEENAN, and DIAZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Michael S. Nachmanoff, Federal Public Defender, Frances H. Pratt, Valencia D. Roberts, Assistant Federal Public Defenders, Nicholas J. Xenakis, Research & Writing Attorney, Richmond, Virginia, for Appellant. Neil H. MacBride, United States Attorney, Erik S. Siebert, Assistant United States Attorney, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: David Amezquita-Franco, a native and citizen of Guatemala, pled guilty pursuant to a written plea agreement to one count of illegal reentry of a deported alien after being convicted of an aggravated §§ 1326(a), (b)(2) sentence eighty-seven of felony (2006). The months in violation court of of imposed imprisonment. 8 a U.S.C. variance Amezquita- Franco appeals, raising two issues: (1) whether his sentence was unreasonable; and (2) whether the district court plainly erred by imposing likely will a be three-year term deported. of For supervised the reasons release that when he follow, we affirm. We review a sentence imposed by a district court for reasonableness, standard. applying a deferential abuse-of-discretion United States v. Rivera Santana, 668 F.3d 95, 100 (4th Cir.), cert. denied, 133 S. Ct. 274 (2012). The first step in our review requires us to ensure that the district court did not commit significant procedural error, such as improperly calculating the Sentencing Guidelines range, failing to consider the factors under 18 U.S.C. § 3553(a) (2006), or failing to adequately explain the sentence. F.3d 325, 328 (4th Cir. 2009). United States v. Carter, 564 We then review the sentence for substantive reasonableness, taking into account the totality of 2 the circumstances. United States v. Strieper, 666 F.3d 288, 295 (4th Cir. 2012). Amezquita-Franco contends that the court erred procedurally in departing upward based on an inadequate criminal history category because the court failed to use an incremental approach as set forth in United States v. Rusher, 966 F.2d 868, 884-85 (4th Cir. 1992), and jumped directly from a category III to category V criminal history. A sentencing court, however, is under no obligation to 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 sentencing court failed to utilize Further, a proper incremental analysis, any procedural error may be harmless if the upward variance based on the § 3553(a) factors justified the sentence imposed. Here, Franco s the criminal Id. at 104. district history expressly was found that under-represented Amezquitaand that category III and IV were insufficient to account for criminal activity that included sexual crimes against a girl younger than fourteen years of age. Moreover, Amezquita-Franco had illegally reentered the United States on at least nine occasions, and had 3 convictions for infractions. driving The while district impaired court and other adequately traffic explained its sentence by reference to the 18 U.S.C. § 3553(a) factors, which the court expressly considered. United States v. Grubbs, 585 F.3d 793, 804 (4th Cir. 2009). The court noted that a longer sentence was needed for deterrence, for a just punishment, to protect the community, and to promote respect for the law. The court found that a sentence within the 70-87 month range, based on Amezquita-Franco s total offense level of 21 and his increased criminal history of V, was adequate but not greater than necessary to accomplish the goals of sentencing set out in § 3553(a). Amezquita-Franco next argues that his sentence was substantively unreasonable because his advisory sentencing range as calculated imprisonment. in the presentence report was 46-57 at of We review the substantive reasonableness of the sentence under the totality of the circumstances. F.3d months 295. A sentencing court must Strieper, 666 impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in [§ 3553(a)(2)]. 18 U.S.C. § 3553(a). In determining whether a variance sentence is reasonable, we must consider court s whether the justification, degree with substantial justification. of a variance larger is supported variance by requiring the more United States v. Diosdado-Star, 630 4 F.3d 359, 366 (4th Cir. 2011). § 3553(a) imposed. factors, on the We will, however, affirm if the whole, justified the sentence Id. at 367 (internal quotation marks omitted). Even if we would have reached a different sentencing result on our own, this fact alone is insufficient to justify reversal of the district court. United States v. Pauley, 511 F.3d 468, 474 (4th Cir. 2007). Here, variance the district Certainly, sentence given and the court adequately justified high number the of explained sentence its imposed. deportations, the seriousness of the offenses against the minor, and the driving while impaired and other traffic offenses guided the court s decision. The district court considered arguments from the parties, listened to Amezquita-Franco, and expressly explained its above Guidelines range various § 3553(a) factors. sentence, specifically addressing Under these circumstances, we find that the sentence was substantively reasonable. Next, Amezquita-Franco argues that the district court erred by imposing a three-year term of supervised release. Amezquita-Franco concedes that the standard of review for this issue is plain error, as he is raising this issue for the first time on appeal. United States v. Maxwell, 285 F.3d 336, 339 (4th Cir. 2002) (providing review standard for plain error). The Guidelines normally counsel 5 against imposing a term of supervised release for someone who is a deportable alien. See U.S. Sentencing Guidelines Manual ( USSG ) § 5D1.1(c) (2011). Nonetheless, courts are encouraged to consider imposing a term of supervised release determines that measure deterrence of such on an and a deportable imposition if would protection circumstances of a particular case. alien provide based on the the court an added facts and See USSG § 5D1.1 cmt. n.5. Here, the court was expressly concerned about deterrence and protection, given Amezquita-Franco s repeated reentries into this country and his sexual crimes against a person under the age of fourteen. Thus, we conclude that the imposition of a term of supervised release was not plain error. Accordingly, We dispense contentions with are oral we affirm argument adequately Amezquita-Franco s because presented in sentence. the facts and the materials legal before this court and argument would not aid the decisional process. AFFIRMED 6

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