US v. Edgar Lagunas-OCampo

Filing 920090220


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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4074 UNITED STATES OF AMERICA, Plaintiff Appellee, v. EDGAR ANTONIO LAGUNAS-OCAMPO, a/k/a Edgar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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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

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