US v. Jose Alvarado-Ibanez

Filing 920090204

Opinion

Download PDF
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4107 UNITED STATES OF AMERICA, Plaintiff Appellee, v. JOSE ALVARADO-IBANEZ, a/k/a Jose Saucedo-Rios, a/k/a Ramon Garcia-Perez, a/k/a Manuel Angel Perez, 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-00206-FL-1) Submitted: January 14, 2009 Decided: February 4, 2009 Before MICHAEL, KING, and SHEDD, 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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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: Jose Alvarado-Ibanez pled guilty to illegal reentry into the United States after deportation, 8 U.S.C. 1326(a), (b)(2) (2006), and was sentenced to a term of ninety-six months imprisonment. Alvarado-Ibanez argues on appeal that his sentence is unreasonable because the district court's departure above the guideline range pursuant to U.S. Sentencing Guidelines Manual (USSG) 4A1.3(a) (2007) was unwarranted and the departure from criminal history category V to VI was excessive. We affirm. Alvarado-Ibanez had 11 criminal history points, which placed him in criminal history category V. He had previously been deported twelve times and had used forty-seven aliases. The sentences for ten of his prior convictions, including three for illegal reentry, as well as seven felony convictions for burglary, receiving stolen property, and a drug offense, were too old to be counted in his criminal history. See USSG 4A1.2(e). The warranted district court determined that a departure a was high because Alvarado-Ibanez's record indicated likelihood that he would again enter the country illegally and that he would commit additional crimes. In making this determination, the court considered his record of recidivism and 2 uncounted prior sentences, as well as the sentencing factors set out under 18 U.S.C. 3553(a) (2006). We review a sentence for abuse of discretion. See Gall v. United States, ___ U.S. ___, 128 S. Ct. 586, 597 (2007). First, we must "ensure that the district court committed no significant procedural error," including improperly calculating the Guidelines on range, not considering facts, the 3553(a) an factors, relying clearly erroneous or giving inadequate explanation for the sentence. Id. at 597; United States v. Osborne, 514 F.3d 377, 387 (4th Cir.), cert. denied, 128 S. Ct. 2525 (2008). We then consider the substantive reasonableness of the sentence imposed, "tak[ing] into account the totality of the circumstances, including the extent of any variance from the Guidelines range." Gall, 128 S. Ct. at 597. If the sentence is outside the guideline range, we "must give due deference to the district court's decision that the 3553(a) factors, on a whole, justify the extent of the variance." Id. Under USSG 4A1.3, a district court may depart upward from an applicable that the Guidelines range if "reliable information category of that the the indicates defendant's criminal the history substantially defendant's under-represents criminal history or seriousness likelihood the defendant will commit other crimes . . . ." USSG 4A1.3(a). In deciding whether a departure is warranted under 4A1.3, a 3 sentencing court may consider prior sentences for similar, or serious dissimilar, criminal conduct not counted in the defendant's criminal history because the sentence is outside the applicable time period. USSG 4A1.2, comment. n.8. The district court decided that Alvarado-Ibanez's long history of illegally entering the United States and committing crimes while in this country established a high likelihood that he would The but illegally reenter again after his release from custody. court also considered Alvarado-Ibanez's We conclude many that serious the uncounted felony convictions. court's decision to depart under 4A1.3 and its one-category departure from category V to category VI was factually supported and that the resulting sentence was reasonable. Moreover, the court adequately explained its reasons for the departure. We district facts therefore We affirm the with are and sentence oral imposed by the the the the court. legal before dispense argument because in aid and contentions the court adequately argument presented not materials would decisional process. AFFIRMED 4

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?