US v. Rinaldy Turcios-Flores
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
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)
February 4, 2010
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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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).
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
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
under-represents criminal history
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
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
See USSG § 4A1.3(a)(2), p.s. the record supports the district court's
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
"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
United States v. Pauley, 511 F.3d 468, 474 (4th Cir. Gall, 552 U.S. at 51). Under 18 U.S.C.
§ 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
consideration demonstrated a
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
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
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?