US v. Jose Alvarado-Ibanez

Filing 920090204

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

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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

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