US v. Lazaro Gutierrez-Bustos

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:08-cr-00373-TDS-1 Copies to all parties and the district court/agency. [998735724].. [09-4599]

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Document: 38

Date Filed: 12/05/2011

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-4599

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LAZARO GUTIERREZ-BUSTOS, a/k/a Lazaro Bustos,
Defendant - Appellant.

Appeal from the United States District
District of North Carolina, at Durham.
District Judge. (1:08-cr-00373-TDS-1)

Submitted:

October 28, 2011

Before NIEMEYER and
Senior Circuit Judge.

GREGORY,

Court for the Middle
Thomas D. Schroeder,

Decided:

Circuit

Judges,

December 5, 2011

and

HAMILTON,

Affirmed by unpublished per curiam opinion.

Eugene E. Lester, III, SHARPLESS & STAVOLA, PA, Greensboro,
North Carolina, for Appellant. Ripley Rand, United States
Attorney, Terri-Lei O’Malley, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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Date Filed: 12/05/2011

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PER CURIAM:
Lazaro Gutierrez-Bustos pled guilty to one count of
illegal

reentry

convicted

of

of

an

a

deported

aggravated

§ 1326(a), (b)(2) (2006).

alien

felony

in

who

had

previously

violation

of

8

been

U.S.C.

The district court sentenced him to

eighty-two months’ imprisonment and he now appeals.

Finding no

error, we affirm.
Gutierrez-Bustos

challenges

the

district

court’s

imposition of a departure sentence pursuant to U.S. Sentencing
Guidelines Manual (“USSG”) § 4A1.3 (2008).

We review a sentence

for reasonableness, applying an abuse of discretion standard.
Gall v. United States, 552 U.S. 38, 51 (2007); see also United
States v. Layton, 564 F.3d 330, 335 (4th Cir. 2009).

In so

doing, we first examine the sentence for “significant procedural
error,”

including

“failing

to

calculate

(or

improperly

calculating) the Guidelines range, treating the Guidelines as
mandatory,
[(2006)]

failing
factors,

to

consider

selecting

a

the

[18

sentence

U.S.C.]
based

§

3553(a)

on

clearly

erroneous facts, or failing to adequately explain the chosen
sentence . . . .”
considers

the

“tak[ing]

into

Gall, 552 U.S. at 51.

substantive
account

the

reasonableness
totality

of

Finally, this court
of

the

sentence,

the

circumstances,

including the extent of any variance from the Guidelines range.”
Id.
2

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Date Filed: 12/05/2011

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When reviewing a departure, we consider “whether the
sentencing
decision

court

to

acted

impose

reasonably

such

a

both

sentence

with

and

respect

to

its

with

respect

to

the

extent of the divergence from the sentencing range.”
States

v.

2007).

Hernandez-Villanueva,

473

F.3d

118,

123

United

(4th

Cir.

Under USSG § 4A1.3(a)(1), “[i]f reliable information

indicates

that

substantially
defendant’s

the

defendant’s

criminal

under-represents
criminal

history

the
or

history

category

seriousness

the

of

the

likelihood

that

the

defendant will commit other crimes, an upward departure may be
warranted.”
that

the

We have thoroughly reviewed the record and conclude
district

reasonable,

the

court’s

extent

of

decision
the

to

upwardly

departure

is

depart

was

reasonable

and

supported by the record, and the court adequately explained both
its decision to depart and the extent of its departure.

See

United States v. Lawrence, 349 F.3d 724, 727-28 (4th Cir. 2003).
Finally, we find Gutierrez-Bustos’ assertion that the district
court should have departed downward sua sponte on the basis of
cultural assimilation to be without merit.
Accordingly, we affirm the judgment of the district
court.
legal

We dispense with oral argument because the facts and
contentions

are

adequately

3

presented

in

the

materials

Appeal: 09-4599

before

Document: 38

the

court

Date Filed: 12/05/2011

and

argument

would

Page: 4 of 4

not

aid

the

decisional

process.
AFFIRMED

4