US v. Salomon Aria

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:11-cr-00401-CCE-1 Copies to all parties and the district court/agency. [999042069]. [12-4359]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4359

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
SALOMON PASILLAS ARIAS,
Salomon Pasillas-Arias,
Salomon Pasillas,

a/k/a
a/k/a

Mon Pacheco Ruis,
Javier Dela-Cruz,

a/k/a
a/k/a

Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:11-cr-00401-CCE-1)

Submitted:

January 31, 2013

Decided:

February 12, 2013

Before DUNCAN, KEENAN, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Louis C. Allen, III, Federal Public Defender, Mireille P.
Clough, Assistant Federal Public Defender, Winston-Salem, North
Carolina, for Appellant. Ripley Rand, United States Attorney,
Angela H. Miller, Assistant United States Attorney, Elizabeth
Choi, Third Year Law Student, Greensboro, North Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Salomon

Pasillas

Arias,

a

native

and

citizen

of

Mexico, pled guilty pursuant to a written plea agreement to one
count

of

illegal

convicted
(b)(1)

of

a

reentry

of

a

deported

felony

in

violation

The

court

imposed

(2006).

of
a

alien

8

U.S.C.

departure

sentence of twenty-four months’ imprisonment.
appeals,

contending

that

the

after

sentence

was

being

§§ 1326(a),
or

variance

Pasillas Arias

unreasonable.

We

affirm.
This court reviews a sentence imposed by a district
court

for

reasonableness,

discretion standard.”
95,

100

(4th

(internal

“a

deferential

abuse-of-

United States v. Rivera-Santana, 668 F.3d

Cir.),

quotation

applying

cert.

marks

denied,

omitted).

133

S.

The

Ct.

first

274
step

(2012)
in

our

review requires us to ensure that the district court did not
commit

significant

calculating
factors

the

under

procedural

guidelines
18

U.S.C.

error,

range,
§ 3553(a)

adequately explain the sentence.
F.3d 325, 328 (4th Cir. 2009).

such

failing
(2006),

as
to
or

improperly

consider
failing

the
to

United States v. Carter, 564
We then review the sentence for

substantive reasonableness, taking into account the totality of
the circumstances.

See United States v. Strieper, 666 F.3d 288,

292, 295 (4th Cir. 2012).

2

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Pasillas

Arias

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contends

that

the

court

erred

procedurally in departing upward based on an inadequate criminal
history

category

because

the

court

failed

to

use

the

step-by-step approach set forth in United States v. Rusher, 966
F.2d 868 (4th Cir. 1992), and jumped directly from a category
III to category V.
obligation

to

However, a sentencing court is under no

“incant

the

specific

language

used

in

the

guidelines, or go through a ritualistic exercise in which it
mechanically discusses each criminal history category or offense
level it rejects en route to the category or offense level that
it selects.”

Rivera-Santana, 668 F.3d at 104 (quoting United

States v. Dalton, 477 F.3d 195, 199 (4th Cir. 2007)).
even

if

the

incremental
because

sentencing

analysis,

the

upward

court

any

“failed

procedural

variance

based

justified the sentence imposed.”
Here

the

court

to

error
on

the

Further,

utilize
would

a

be

§ 3553(a)

proper
harmless
factors

Id. at 104.

expressly

found

that

even

if

the

departure was not procedurally sound, the court “would still
vary upward to the same effect because of the deportations, the
repeated breaking of the law and the need to protect the public
from future crime.”
sentence

is

(J.A. 65).

procedurally

adequately

explained

supporting

a

variance

its

We have held that a “resulting

reasonable
sentence

sentence,
3

by

[if]
on

the

district

alternative

reference

to

18

court

grounds
U.S.C.

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§ 3553(a).”

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United States v. Grubbs, 585 F.3d 793, 804 (4th

Cir. 2009).
Here, the district court found that Pasillas Arias’
criminal history category was substantially underrepresented and
that category V was more appropriate, taking into account his
two

prior

deportations,

conviction

after

his

repeated

felony

speeding

death

and

by

motor

traffic

offenses,

numerous uncounted misdemeanors and infractions.
district

court

made

an

alternative

sentence

under

§ 3553(a)

was

finding

appropriate,

vehicle
and

Because the

that

a

after

variance

specifically

considering the nature and circumstances of the offense, the
prior deportations, the repeated breaking of the law and the
need to protect the public from future crime, we find that the
sentence was procedurally reasonable.
Pasillas Arias next argues that his sentence, which
was eight months above the high end of the advisory guidelines
range,

was

substantively

unreasonable

factors present in his case.

given

the

mitigating

A sentencing court must “impose a

sentence sufficient, but not greater than necessary, to comply
with

the

purposes

§ 3553(a).

set

“Even

forth

if

we

in

would

[§ 3553(a)(2)].”
have

reached

18
a

U.S.C.

different

sentencing result on our own, this fact alone is insufficient to
justify

reversal

of

the

district

4

court.”

United

States

v.

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Pauley, 511 F.3d 468, 474 (4th Cir. 2007) (internal quotation
marks omitted).
The
parties

district

court
both

addressing

considered

arguments

mitigating

and

from

the

aggravating

circumstances, and specifically noted Pasillas Arias’ repeated
deportations, repeated violations of the law, and the need to
protect

the

public.

The

court

observed

that

the

many

misdemeanors and infractions were not accounted for in Pasillas
Arias’

original

traffic

sentence

violations

calculation,

eventually

led

to

and
a

that

the

conviction

death by motor vehicle involving alcohol.

list

of

of

felony

The court emphasized

the need to protect the public from future criminal activity.
As

such,

we

find

that

the

court

sufficiently

referenced

the

§ 3553(a) factors, and conclude that the resulting sentence was
substantively reasonable.
Accordingly, we affirm the judgment of the district
court.
legal
before

We dispense with oral argument because the facts and
contentions
this

court

are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.
AFFIRMED

5