Filed: Feb. 20, 2009
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4074 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. EDGAR ANTONIO LAGUNAS-OCAMPO, a/k/a Edgar Luguna-OCampo, Defendant – Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at New Bern. Louise W. Flanagan, Chief District Judge. (5:07-cr-00171-FL-1) Submitted: January 14, 2009 Decided: February 20, 2009 Before NIEMEYER, GREGORY, and AGEE, Circuit Judges. Affirmed by unpubli
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4074 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. EDGAR ANTONIO LAGUNAS-OCAMPO, a/k/a Edgar Luguna-OCampo, Defendant – Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at New Bern. Louise W. Flanagan, Chief District Judge. (5:07-cr-00171-FL-1) Submitted: January 14, 2009 Decided: February 20, 2009 Before NIEMEYER, GREGORY, and AGEE, Circuit Judges. Affirmed by unpublis..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4074
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
EDGAR ANTONIO LAGUNAS-OCAMPO, a/k/a Edgar Luguna-OCampo,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan,
Chief District Judge. (5:07-cr-00171-FL-1)
Submitted: January 14, 2009 Decided: February 20, 2009
Before NIEMEYER, GREGORY, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney, Anne
M. Hayes, Jennifer P. May-Parker, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Edgar Antonio Lagunas-OCampo appeals his conviction
and eighty-five month sentence after entering a guilty plea to
illegal reentry of an aggravated felon, in violation of 8 U.S.C.
§ 1326 (2006). Lagunas-OCampo’s sole contention on appeal is
that his departure sentence, which was fourteen months longer
than the high end of his original Guidelines range, is
unreasonable and should be vacated. Finding no error, we
affirm.
After United States v. Booker, 543 U.S. 220 (2005), a
sentence is reviewed for reasonableness, using an abuse of
discretion standard of review. Gall v. United States, 128 S.
Ct. 586, 597 (2007). The first step in this review requires the
court to ensure that the district court committed no significant
procedural error, such as improperly calculating the Guidelines
range. United States v. Evans,
526 F.3d 155, 161 (4th Cir.
2008). Lagunas-OCampo claims no procedural error.
Accordingly, this court must next consider the
substantive reasonableness of the sentence imposed, taking into
account the totality of the circumstances. Id. at 161-62.
While the court may presume that a sentence within the
Guidelines range is reasonable, it may not presume that a
sentence outside the Guidelines range is unreasonable.
Gall,
128 S. Ct. at 597; see United States v. Dalton,
477 F.3d 195,
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197 (4th Cir. 2007) (holding that a district court’s decision to
depart is reviewed for reasonableness). Rather, in reviewing a
sentence outside the Guidelines range, this court must consider
“whether the sentencing court acted reasonably both with respect
to its decision to impose such a sentence and with respect to
the extent of the divergence from the sentencing range.” United
States v. Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir.
2007) (citation omitted).
This court will find a sentence to be unreasonable if
the sentencing “court provides an inadequate statement of
reasons or relies on improper factors in imposing a sentence
outside the properly calculated advisory sentencing range.” Id.
at 123. The court must, however, give due deference to the
district court’s decision that the 18 U.S.C. § 3553(a) (2006)
factors justify the sentence.
Evans, 526 F.3d at 162. Even if
this court would have imposed a different sentence, this fact
alone is insufficient to justify vacatur of the district court’s
sentence.
Id.
We find that the district court’s eighty-five month
departure sentence was substantively reasonable. Under the
Guidelines, a district court may depart upward from an
applicable Guidelines range if “reliable information indicates
that the defendant’s criminal history category substantially
under-represents the seriousness of the defendant’s criminal
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history or the likelihood that the defendant will commit other
crimes . . . .” U. S. Sentencing Guidelines Manual (“USSG”)
§ 4A1.3(a)(1) (2007); see United States v. Dixon, 318 F.3d 585,
588-89 (4th Cir. 2003) (noting that under-representative
criminal history category “is an encouraged basis for
departure”).
To determine whether a departure sentence is
appropriate in such circumstances, the Guidelines explicitly
state that a court may consider prior sentences not used in the
criminal history calculation. See USSG § 4A1.3(a)(2) (2007).
This court has also recognized that probation and parole
violations may be considered when assessing the likelihood of
recidivism. See United States v. Lawrence, 349 F.3d 724, 728
(4th Cir. 2003). Accordingly, the district court appropriately
considered Lagunas-OCampo’s prior uncounted criminal history and
repeated failure to abide by the terms of his probation to
determine that a departure sentence was warranted. *
The district court also provided an adequate statement
of reasons why it was issuing a departure sentence. Notably,
*
Although Lagunas-OCampo summarily asserts that the
district court’s departure sentence punished him three times for
the same criminal conduct, this assertion is belied by the fact
that the district court explicitly indicated that it was
increasing Lagunas-OCampo’s criminal history category based on
criminal history not considered by the probation officer in his
original Guidelines range calculation.
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the district court thoroughly reviewed and analyzed
Lagunas-OCampo’s unscored criminal history and accurately
highlighted the fact that Lagunas-OCampo repeatedly refused to
comply with his supervised release terms, thereby evidencing a
disregard for United States law. The district court did so not
only at sentencing, but also in a sentencing memorandum more
thoroughly explaining its rationale for the departure sentence.
Given Lagunas-OCampo’s extensive criminal history and numerous
parole violations, the district court’s meaningful articulation
of its consideration of the § 3553(a) factors, and its careful
consideration of factors appropriately viewed when departing
from the recommended Guideline range, we find that the extent of
the departure was reasonable, as well. Cf. United States
v. Davenport, 445 F.3d 366, 372 (4th Cir. 2006) (holding that a
sentence more than three times the top of the advisory
Guidelines range was unreasonable where the factors relied upon
by the district court did not justify such a sentence and the
court failed to explain how the variance sentence served the
§ 3553(a) factors), overruled in part on other grounds by,
Irizarry v. United States,
128 S. Ct. 2198 (2008).
Based on the foregoing, we affirm the district court’s
judgment. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
5
before the court and argument would not aid the decisional
process.
AFFIRMED
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