US v. Luis Vasquez-Vega, No. 13-4849 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4849 UNITED STATES OF AMERICA, Plaintiff Appellee, v. LUIS MANUEL VASQUEZ-VEGA, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Louise W. Flanagan, District Judge. (5:13-cr-00062-FL-1) Submitted: May 30, 2014 Decided: June 11, 2014 Before KEENAN, WYNN, and FLOYD, Circuit Judges. Affirmed by unpublished per curiam opinion. Thomas P. McNamara, Federal Public Defender, Eric J. Brignac, Assistant Federal Public Defender, Raleigh, North Carolina, for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Luis Manuel Vasquez-Vega appeals the thirty-month sentence imposed following his guilty plea to illegal reentry by a felon, in violation of 8 U.S.C. § 1326(a), (b)(1) (2012). On appeal, Vasquez-Vega challenges the court s decision to depart upward under U.S. Sentencing Guidelines Manual ( USSG ) § 4A1.3, p.s. (2012), after history category criminal history concluding that underrepresented and his likelihood Vasquez-Vega s the of criminal seriousness his For recidivism. of the reasons that follow, we affirm. We review a sentence for reasonableness, applying a deferential abuse-of-discretion States, 552 U.S. 38, 52 (2007). for significant standard. Gall v. United We first review the sentence procedural error, including improper calculation of the Guidelines range, insufficient consideration of the 18 U.S.C. § 3553(a) (2012) factors, reliance on clearly erroneous facts, imposed. Id. at 51; see United States v. Lynn, 592 F.3d 572, 575 Cir. (4th and 2010). inadequate If we explanation find the of sentence the sentence procedurally reasonable, we also must examine its substantive reasonableness under the totality of the circumstances. Lynn, 592 F.3d at 578. The sentence imposed must be sufficient, but not greater than necessary, to comply with the purposes [of sentencing]. U.S.C. § 3553(a). 2 18 In reviewing a sentencing court s departure from the Guidelines range, 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. McNeill, 598 F.3d 161, 166 (4th Cir. 2010) (internal quotation marks omitted). [A]n appellate court must defer to the trial court and can reverse a sentence only if it is unreasonable, even if the sentence would not have been the choice of the appellate court. United States (emphasis v. Evans, omitted). 526 F.3d Nevertheless, 155, 160 [t]he (4th Cir. 2008) the court farther diverges from the advisory guideline range, the more we must carefully scrutinize the reasoning offered by the district court in support of the sentence. United States v. Hampton, 441 (internal F.3d 284, 288 (4th Cir. 2006) quotation marks omitted). A sentencing court may depart upward [i]f reliable information category indicates substantially defendant s criminal that the defendant s underrepresents history or defendant will commit other crimes. In making information this as determination, prior the the seriousness likelihood history of that the the USSG § 4A1.3(a)(1), p.s. the sentences criminal court not used may in rely the on such defendant s criminal history calculation and [p]rior similar adult criminal 3 conduct not resulting in a § 4A1.3(a)(2)(A), (E), p.s. departure, the sentencing approach to the criminal history criminal conviction. USSG In determining the extent of the court Guidelines, categories is to moving after apply to an incremental successively finding the prior higher category inadequate, until it reaches the criminal history category that most closely likelihood resembles of the recidivism. defendant s See USSG criminal history § 4A1.3(a)(4)(B), or p.s.; United States v. Dalton, 477 F.3d 195, 199 (4th Cir. 2007). We find no abuse of discretion in either the fact or extent of the departure imposed by the court. Vasquez-Vega had five prior convictions for illegal entry, only three of which were assigned criminal history points. The presentence report ( PSR ) extensive also described Vasquez-Vega s illegal reentry, reaching back nearly twenty years. history of He admitted crossing the border illegally on more than seventy occasions between 1997 and 2010; thirty crossings were documented through contact with Immigration and Customs Enforcement ( ICE ) between 1996 and 1999. Because Vasquez-Vega did not challenge information, the court was entitled to rely on it. this See United States v. Randall, 171 F.3d 195, 210-11 (4th Cir. 1999) (noting defendant has burden to establish facts in PSR are incorrect). 4 The court also concluded that Vasquez-Vega s criminal history score Vasquez-Vega evidence to did not argues reflect support that this the his work record finding. as a provides However, coyote. * insufficient we conclude the district court did not clearly err in finding that the sheer number of otherwise unexplained crossings to which Vasquez-Vega admitted, coupled convictions, with bolstered several the recent testimony of an illegal ICE agent reentry on the matter and provided sufficient evidence to support the court s finding. Based on Vasquez-Vega s pattern of frequent illegal entry, which was undeterred by five custodial sentences between 1999 and 2011, and the court s finding regarding the purpose of his illegal entry, we conclude the court was amply justified in finding Vasquez-Vega s criminal history score of IV inadequate. Contrary to Vasquez-Vega s assertions on appeal, neither the fact that his prior sentences were lenient, nor the fact that his prior offenses, sentence. criminal required conduct the court comprised to nonviolent impose a immigration within-Guidelines See United States v. Zelaya-Rosales, 707 F.3d 542, 546 (5th Cir. 2013); United States v. Mejida-Perez, 635 F.3d * [C]oyote is the term for those who facilitate unlawful entry from Mexico. United States v. Rodriguez, 587 F.3d 573, 575 n.1 (2d Cir. 2009). 5 351, 353 (8th Cir. 2011). Thus, we conclude the court did not abuse finding its discretion in a USSG § 4A1.3 departure warranted. Turning to the length of the departure, we find the sentence both procedurally and substantively reasonable. The court the followed the necessary procedures in imposing departure, providing specific reasons for departing and properly applying an incremental approach when determining the length of the sentence. See Dalton, 477 F.3d at 199. The district court also appropriately applied the § 3553(a) factors when selecting the length of the sentence. Vasquez-Vega s flagrant The court properly concluded that recidivism established a significant need to promote respect for the law, to deter further criminal conduct, and to protect the public from further crime. U.S.C. § 3553(a)(2)(A), (B), (C). See 18 The court also specifically noted that it had considered Vasquez-Vega s early exposure to illegal extent entry of the and relied departure. on this fact Affording when the determining court s the sentencing determination the requisite deference, see Gall, 552 U.S. at 51, we conclude its decision to depart upward by nine months was not substantively unreasonable. Accordingly, we affirm the district court s judgment. We dispense with oral argument 6 because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 7

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