US v. Jose Alvarado-Ibanez
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
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)
January 14, 2009
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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
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
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,
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
under-represents criminal history or
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
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
because in aid
contentions the court
decisional process. AFFIRMED
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