US v. Jesus Santiago

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:11-cr-00027-BR-1 Copies to all parties and the district court/agency. [998848472].. [11-4799]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-4799

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JESUS SANTIAGO, a/k/a Natalio Reyes, a/k/a Lorenzo Javier
Bautista,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
W. Earl Britt, Senior
District Judge. (5:11-cr-00027-BR-1)

Submitted:

April 24, 2012

Decided:

May 7, 2012

Before NIEMEYER and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant.
Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, Yvonne V. Watford-McKinney, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Jesus

Santiago

appeals

his

sentence

of

fifty-seven

months’ imprisonment after pleading guilty to illegal reentry,
in violation of 8 U.S.C. § 1326(a), (b)(1) (2006).

Santiago

argues that his sentence is procedurally unreasonable because
the district court failed to address his arguments for a lesser
sentence.

He further argues that his sentence is substantively

unreasonable because the district court’s decision to impose an
upward departure was unwarranted.

The Government responds that

the district court sufficiently addressed Santiago’s arguments
and that the sentence is substantively reasonable.
This
substantive
standard.

court

reviews

reasonableness

a

sentence

using

the

for

procedural

abuse-of-discretion

Gall v. United States, 552 U.S. 38, 51 (2007); United

States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010).
first

and

determines

whether

the

sentence

is

The court
procedurally

reasonable, including whether the district court analyzed the
arguments presented by the parties and sufficiently explained
the

selected

sentence.

Lynn,

592

F.3d

at

575-76;

States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009).
then

reviews

unless

the

for

substantive

sentence

is

an

reasonableness

abuse

of

and

discretion.

United

The court

will
A

affirm

sentence

outside of the Guidelines range is not presumed unreasonable.
See Gall, 552 U.S. at 51.

“When reviewing a departure, we
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consider whether the sentencing court acted reasonably both with
respect

to

its

decision

respect

to

the

extent

range.”

to

of

impose

the

such

divergence

a

sentence

from

the

and

with

sentencing

United States v. McNeill, 598 F.3d 161, 166 (4th Cir.

2010), aff’d on other grounds, 131 S. Ct. 2218 (2011).
At Santiago’s sentencing hearing, the Government moved
for

an

upward

departure.

Santiago

argued

that

his

criminal

history was adequately accounted for by the Guidelines and that
his conduct, characteristics, and prior record did not warrant
imposition

of

an

determined

that

upward

Santiago’s

departure.
criminal

The
history

district
category

court
of

IV

significantly under-represented the seriousness of his criminal
history and the likelihood that he would commit future crimes.
The court thus imposed an upward departure to a criminal history
category of V and a Guidelines range of forty-six to fifty-seven
months’ imprisonment.

The court sentenced Santiago to fifty-

seven months’ imprisonment.
Initially,
procedurally

we

conclude

reasonable.

Santiago’s

uncontested

departure,

Santiago’s

The
history

the

selected

Santiago’s

district
of

removals

characteristics,

Santiago’s criminal history.
of

that

sentence

and

sentence

is

court

addressed

and

voluntary

the

nature

of

The district court’s explanation
sufficiently

arguments for a lesser sentence.
3

addressed

Santiago’s

Further, the district court

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did

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not

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err

appropriate,

in
and

concluding
it

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that

properly

an

upward

calculated

such

departure

was

departure

U.S. Sentencing Guidelines Manual § 4A1.3 (2010).

under

The sentence

is thus procedurally reasonable.
We

next

conclude

substantively reasonable.

that

Santiago’s

sentence

is

The district court determined that

Santiago’s history of illegally entering the United States, as
well as the nature of his prior conduct and criminal history,
justified an upward departure of one criminal history category.
The extent of the sentencing departure — eleven months — is not
excessive

or

substantively
discretion
departure

to
is

otherwise

in

reasonable.
impose

an

substantively

error.
Because

upward

The
the

sentence

thus

court

had

because

the

district

departure,

reasonable,

is

the

and

imposition

of

a

fifty-seven month sentence in this case was not an abuse of
discretion.
Accordingly, we affirm the judgment of the district
court.
legal
before

We dispense with oral argument because the facts and
contentions
the

court

are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.
AFFIRMED

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