US v. Edgar Lagunas-OCampo

Filing 920090220

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4074

UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. EDGAR ANTONIO LAGUNAS-OCAMPO, a/k/a Edgar Luguna-OCampo, Defendant ­ Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at New Bern. Louise W. Flanagan, Chief District Judge. (5:07-cr-00171-FL-1)

Submitted:

January 14, 2009

Decided:

February 20, 2009

Before NIEMEYER, GREGORY, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.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, Jennifer P. May-Parker, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Edgar Antonio Lagunas-OCampo appeals his conviction

and eighty-five month sentence after entering a guilty plea to illegal reentry of an aggravated felon, in violation of 8 U.S.C. § 1326 (2006). Lagunas-OCampo's sole contention on appeal is

that his departure sentence, which was fourteen months longer than the high and end of his be original vacated. Guidelines Finding no range, error, is we

unreasonable affirm.

should

After United States v. Booker, 543 U.S. 220 (2005), a sentence is reviewed for reasonableness, using an abuse of

discretion standard of review. Ct. 586, 597 (2007).

Gall v. United States, 128 S.

The first step in this review requires the

court to ensure that the district court committed no significant procedural error, such as improperly calculating the Guidelines range. 2008). United States v. Evans, 526 F.3d 155, 161 (4th Cir. Lagunas-OCampo claims no procedural error. Accordingly, this court must next consider the

substantive reasonableness of the sentence imposed, taking into account While the the totality court range may is of the circumstances. that it a may Id. at 161-62. the a

presume

sentence not

within

Guidelines

reasonable,

presume

that

sentence outside the Guidelines range is unreasonable.

Gall,

128 S. Ct. at 597; see United States v. Dalton, 477 F.3d 195, 2

197 (4th Cir. 2007) (holding that a district court's decision to depart is reviewed for reasonableness). Rather, 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 sentencing range." States v. Hernandez-Villanueva, 473 F.3d 118, 123 United Cir.

(4th

2007) (citation omitted). This court will find a sentence to be unreasonable if the sentencing "court provides an inadequate statement of

reasons or relies on improper factors in imposing a sentence outside the properly calculated advisory sentencing range." at 123. Id.

The court must, however, give due deference to the

district court's decision that the 18 U.S.C. § 3553(a) (2006) factors justify the sentence. Evans, 526 F.3d at 162. Even if

this court would have imposed a different sentence, this fact alone is insufficient to justify vacatur of the district court's sentence. Id. We find that the district court's eighty-five month departure sentence a was substantively court may reasonable. depart upward Under from the an

Guidelines,

district

applicable Guidelines range if "reliable information indicates that the defendant's the criminal history of category substantially criminal

under-represents

seriousness 3

the

defendant's

history or the likelihood that the defendant will commit other crimes . . . ." U. S. Sentencing Guidelines Manual ("USSG")

§ 4A1.3(a)(1) (2007); see United States v. Dixon, 318 F.3d 585, 588-89 criminal (4th Cir. 2003) category (noting "is that an under-representative basis for

history

encouraged

departure"). To appropriate in determine such whether a departure the sentence is

circumstances,

Guidelines

explicitly

state that a court may consider prior sentences not used in the criminal history calculation. This court has also See USSG § 4A1.3(a)(2) (2007). that probation and parole

recognized

violations may be considered when assessing the likelihood of recidivism. See United States v. Lawrence, 349 F.3d 724, 728 Accordingly, the district court appropriately

(4th Cir. 2003).

considered Lagunas-OCampo's prior uncounted criminal history and repeated failure to abide by the terms of his probation to

determine that a departure sentence was warranted. * The district court also provided an adequate statement of reasons why it was issuing a departure sentence.
*

Notably,

Although Lagunas-OCampo summarily asserts that the district court's departure sentence punished him three times for the same criminal conduct, this assertion is belied by the fact that the district court explicitly indicated that it was increasing Lagunas-OCampo's criminal history category based on criminal history not considered by the probation officer in his original Guidelines range calculation.

4

the

district

court

thoroughly criminal

reviewed history

and and

analyzed accurately

Lagunas-OCampo's

unscored

highlighted the fact that Lagunas-OCampo repeatedly refused to comply with his supervised release terms, thereby evidencing a disregard for United States law. The district court did so not

only at sentencing, but also in a sentencing memorandum more thoroughly explaining its rationale for the departure sentence. Given Lagunas-OCampo's extensive criminal history and numerous parole violations, the district court's meaningful articulation of its consideration of the § 3553(a) factors, and its careful consideration of factors appropriately viewed when departing

from the recommended Guideline range, we find that the extent of the departure was reasonable, as well. Cf. United States

v. Davenport, 445 F.3d 366, 372 (4th Cir. 2006) (holding that a sentence more than three times the top of the advisory

Guidelines range was unreasonable where the factors relied upon by the district court did not justify such a sentence and the court failed to explain how the variance sentence served the § 3553(a) factors), overruled in part on other grounds by,

Irizarry v. United States, 128 S. Ct. 2198 (2008). Based on the foregoing, we affirm the district court's judgment. legal We dispense with oral argument because the facts and are adequately presented in the materials

contentions

5

before

the

court

and

argument

would

not

aid

the

decisional

process. AFFIRMED

6