US v. Rinaldy Turcios-Flores

Filing 920100304

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-4537

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RINALDY TURCIOS-FLORES, Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert E. Payne, Senior District Judge. (3:09-cr-00010-REP-1)

Submitted:

February 4, 2010

Decided:

March 4, 2010

Before MICHAEL, SHEDD, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Michael S. Nachmanoff, Federal Public Defender, Mary E. Maguire, Assistant Federal Public Defender, Patrick L. Bryant, Research and Writing Attorney, Richmond, Virginia, for Appellant. Neil H. MacBride, United States Attorney, S. David Schiller, Assistant United States Attorney, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Rinaldy Turcios-Flores pled guilty, pursuant to a plea agreement, to one count of illegal reentry after being convicted of an aggravated felony, in violation of 8 U.S.C. § 1326(a), (b)(2) (2006). U.S. Sentencing The district court departed upward pursuant to Guidelines Manual ("USSG") § 4A1.3(a), p.s.

(2007), imposed an upward variance, and sentenced Turcios-Flores to sixty months in prison. On appeal, Turcios-Flores argues Finding

that the district court erred in imposing his sentence. no error, we affirm.

When determining a sentence, the district court must calculate the appropriate advisory guidelines range and consider it in conjunction (2006). with Gall the v. factors United set forth 552 in 18 U.S.C. 38, 51

§ 3553(a) (2007).

States,

U.S.

Appellate review of a sentence, "whether inside, just

outside, or significantly outside the [g]uidelines range," is for abuse of discretion. determines that a Id. at 41. outside the If the district court guidelines range is

sentence

appropriate, the reviewing court "should first look to whether a departure is appropriate based on the [g]uidelines Manual or relevant case law." 432 (4th Cir. 2006). Turcios-Flores challenges the district court's United States v. Moreland, 437 F.3d 424,

decision to impose an upward departure. 2

A district court may

depart upward from the guidelines range under USSG § 4A1.3(a), p.s., when "the defendant's criminal the or the history category of that the the

substantially defendant's

under-represents criminal history

seriousness likelihood

defendant will commit other crimes."

USSG § 4A1.3(a)(1), p.s.;

see United States v. Whorley, 550 F.3d 326, 341 (4th Cir. 2008) (noting that under-representative criminal history category is an encouraged basis for departure), cert. denied, ___U.S.___, 78 U.S.L.W. 3392 (U.S. Jan. 11, 2010) (No. 09-6521). 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, prior sentences of "substantially more than one year" for independent crimes committed at

different times, prior similar misconduct resolved by civil or administrative adjudication, charges pending at the time of the offense, or prior similar conduct that did not result in a

conviction.

See USSG § 4A1.3(a)(2), p.s. the record supports the district court's

Here,

conclusion that Turcios-Flores' criminal history category failed to adequately reflect the seriousness of his criminal history and the likelihood of his recidivism. Turcios-Flores had

multiple unscored convictions not included in calculating his criminal history category, a 3 lengthy history of lenient

sentences followed by recidivism, and a number of probation and supervised release violations. Thus, the district court did not

err in imposing the departure sentence. Turcios-Flores decision to impose an also upward of challenges variance. an upward the district court's the

When

reviewing the

substantive

reasonableness

variance,

court

"must give due deference to the district court's decision that the § 3553(a) [(2006)] factors, on a whole, justify the extent of the variance." Gall, 552 U.S. at 51. reached alone a different sentencing to result "Even if we would have on our own, of the this fact

is

`insufficient

justify

reversal

district

court.'" 2007)

United States v. Pauley, 511 F.3d 468, 474 (4th Cir. Gall, 552 U.S. at 51). Under 18 U.S.C.

(quoting

§ 3553(a), the district court should consider the nature and circumstances of the offense and the history and characteristics of the defendant. The court should impose a sentence that

reflects the seriousness of the offense, and the need to promote respect for the law, to provide just punishment, to afford

adequate deterrence, to protect the public from further crimes, and to provide the defendant with adequate rehabilitation or medical treatment. We find that, in imposing a variance sentence, the district court provided an adequate individualized assessment of the § 3553 sentencing factors in relation to Turcios-Flores and 4

his

criminal

conduct. prior

The criminal

court

took

into

consideration demonstrated a

Turcios-Flores'

conduct,

which

lack of respect for the law, as well as the fact he had received some punishment for conduct related to the current conviction. Accordingly, discretion. Finally, unreasonable for Turcios-Flores the district court argues to run that his it was we find the district court did not abuse its

sixty-month We

sentence consecutive to his other terms of imprisonment. find no error in this decision. n.3(C).

See USSG § 5G1.3(c) & cmt.

We conclude that the district court did not abuse its discretion in imposing the sixty-month sentence. We therefore affirm the district court's judgment. We dispense with oral

argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED

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