KING, Circuit Judge:
Defendant Agustin Rivera-Santana seeks relief from a sentence of 240 months in prison, imposed as a result of his illegal reentry into the United States after being removed for a conviction of an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2). On appeal, Rivera-Santana mounts several procedural challenges to the sentence, contending that the district court erred in making two upward departures in the advisory Sentencing Guidelines range, augmented by an upward variance of 90 months therefrom. He also asserts that the resulting sentence—the statutory maximum—is, in any event, substantively unreasonable. As explained below, we reject these contentions and affirm.
Rivera-Santana was born in Mexico in 1956.
In 1988, Rivera-Santana shot and killed his pregnant wife. He was thereafter convicted in California of voluntary manslaughter
In March 2005, Rivera-Santana illegally reentered the United States for a third time, travelling to Virginia to live with his daughter and her family. Soon thereafter, on August 24, 2005, he was convicted in Virginia of an open container violation and fined fifty dollars. A few months later, on February 5, 2006, Rivera-Santana sexually assaulted his eight-year-old granddaughter in his daughter's home. As a result, he was convicted in Virginia Beach of aggravated sexual assault and attempted forcible sodomy. For these offenses, he was sentenced to thirty years in prison, with all but six years and ten months suspended. Rivera-Santana is scheduled for release from the Virginia prison facilities on March 9, 2012.
On March 2, 2010, the grand jury in the Eastern District of Virginia indicted Rivera-Santana for illegal reentry after a prior removal for a conviction of an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2).
In conjunction with the sentencing proceedings in the district court, the probation officer prepared Rivera-Santana's Presentence Investigation Report (the "PSR"). The PSR recommended an adjusted offense level of 21, reflecting a sixteen-level enhancement pursuant to Guidelines section 2L1.2 (the "illegal reentry guideline") for Rivera-Santana's prior voluntary manslaughter conviction. The resultant offense level, considered in combination with the applicable criminal history category, calculated at IV, yielded an advisory
The district court conducted its sentencing hearing on October 8, 2010, first determining that Rivera-Santana's criminal history was underrepresented in the PSR-recommended Guidelines calculations because certain of his prior convictions and arrests were unscored. See USSG § 4A1.3(a) (providing for upward departure where "reliable information indicates that the defendant's criminal history category substantially under-represents the seriousness of the defendant's criminal history"). Hence, the court upwardly departed, adding seventeen criminal history points to the PSR-recommended eight.
The sentencing court then determined that a criminal history category of VI, coupled with an offense level of 21, produced an inadequate advisory Guidelines range (77 to 96 months). The court explained:
J.A. 155.
The sentencing court then upwardly departed for a second time, to a higher offense level. See USSG § 4A1.3(a)(4)(B) (providing for upward departure if highest criminal history category deemed insufficient). In so doing, the court allocated one
The district court then concluded, however, that "a sentence of 120 to 150 months [was] not sufficient to punish the defendant and to accomplish the objectives of the sentencing guidelines." J.A. 158. After considering the sentencing factors set forth in 18 U.S.C. § 3553(a), the court decided that an upward variance to the statutory maximum was warranted.
J.A. 158.
Accordingly, the sentencing court concluded that, in order to deter Rivera-Santana, properly protect the public, and promote respect for the law, it was obliged to vary upward to the statutory maximum and impose a sentence of 240 months in prison. The court entered its judgment order on October 8, 2010, and Rivera-Santana has timely appealed. We possess jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
We review for reasonableness a sentence imposed by a district court. See Gall v. United States, 552 U.S. 38, 46, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). In undertaking such a review, "we must first ensure that the district court committed no significant procedural error," such as "failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence—including an explanation for any deviation from the Guidelines range." United States v. Diosdado-Star, 630 F.3d 359, 363 (4th Cir.2011) (internal quotation marks omitted). Absent a significant procedural error, our next step is to assess the substantive reasonableness of the sentence imposed. See id. In either event, a "deferential abuse-of-discretion standard" applies to "any sentence, whether inside,
Rivera-Santana maintains on appeal that his sentence is both procedurally and substantively unreasonable. His procedural challenges arise from three separate decisions made by the sentencing court: (1) the upward departure under Guidelines section 4A1.3(a), departing from the PSR-recommended Guidelines range of 57 to 71 months to an advisory Guidelines range of 77 to 96 months (the "criminal history category departure"); (2) the upward departure under Guidelines section 4A1.3(a)(4)(B), further departing to an advisory Guidelines range of 120 to 150 months (the "offense level departure"); and (3) the upward variance, pursuant to 18 U.S.C. § 3553(a), resulting in the statutory maximum of 240 months. Rivera-Santana identifies four instances of procedural error attributable to the two departures and the variance. First, he suggests that the district court gave too much weight to the illegal reentry guideline, Guidelines section 2L1.2, as a foundation for its departures and variance. Second, Rivera-Santana asserts that the court erred in making its upward departures by relying on improper factors and in calculating his offense level and criminal history points. Third, he posits that, in departing, the sentencing court failed to apply an incremental approach. And, fourth, he claims that the court erred in basing its 90-month variance on the § 3553(a) factors, without considering the relevant mitigating factors and the need to avoid unwarranted sentencing disparities. Separately, Rivera-Santana contends that his sentence is substantively unreasonable because it is greater than necessary to achieve the aims of sentencing and is essentially a life sentence, given his age (55 years) and his health. We assess each of these contentions in turn.
Rivera-Santana first contends that his sentence is procedurally unreasonable because the sixteen-level enhancement authorized by the illegal reentry guideline, section 2L1.2, is an "arbitrary" one. See Br. of Appellant 19. He argues that the Sentencing Commission improperly adopted that specific guideline, having failed to conduct adequate "empirical studies or examination of past sentencing practices." Id. Additionally, Rivera-Santana asserts that the illegal reentry guideline's sixteen-level enhancement constitutes a "weak base on which to layer both a departure and a variance." Id. at 20.
Although a sentencing court may be entitled to consider policy decisions underlying the Guidelines, including the presence or absence of empirical data, see Kimbrough v. United States, 552 U.S. 85, 107-10, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), it is under no obligation to do so, see United States v. Mondragon-Santiago, 564 F.3d 357, 365-67 (5th Cir.2009); accord United States v. Lopez, 650 F.3d 952, 967 (3d Cir.2011); see also United States v. Perez-Frias, 636 F.3d 39, 43 (2d Cir. 2011) (concluding that illegal reentry guideline was properly adopted by Commission). Moreover, Rivera-Santana's procedural challenge to the illegal reentry guideline rests on a faulty premise—that any application of that guideline is "flawed" because it impermissibly double counts a defendant's prior criminal record—first, in determining the offense level, and again in calculating the criminal history score. See Br. of Appellant 19-20.
Rivera-Santana next contends that both of the district court's upward departures were procedurally defective because: (1) the court erroneously relied on our decision in United States v. Rybicki, 96 F.3d 754, 757-58 (4th Cir.1996) (establishing five-factor analysis for whether sentencing court may depart), which he maintains is no longer controlling, due to the Supreme Court's decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); and (2) the court improperly augmented his criminal history points by scoring prior arrests that were dissimilar to the offense of conviction, see United States v. Dixon, 318 F.3d 585, 591 n. 5 (4th Cir.2003) (affirming departure based on defendant's prior arrests involving misconduct similar to offense of conviction). Rather than assess the extent to which Rybicki may be good law post-Booker, and without deciding whether certain of Rivera-Santana's prior arrests (with no dispositions ascertained) could be scored because they were sufficiently similar to the offense of conviction, we are entitled to summarily reject this contention because, even if we "assume that an error occurred[, it] is harmless." See United States v. Savillon-Matute, 636 F.3d 119, 123 (4th Cir.2011).
Although Rivera-Santana objected to the district court making any upward departure from the PSR-recommended calculations, he nevertheless acknowledged that the court—acting within its discretion—was authorized under the Guidelines to elevate his criminal history category to VI by adding twelve criminal history points for unscored prior offenses. See J.A. 142. Rivera-Santana maintained, however, that the court was entitled to make the first departure only, that is, the criminal history category departure that elevated his advisory Guidelines range to 77 to 96 months. Having carefully assessed this point, we discern no abuse of discretion in the sentencing court's decision
In moving beyond the criminal history category departure to the offense level departure, the sentencing court carefully considered Rivera-Santana's position that only twelve—as opposed to seventeen— additional criminal history points could properly be scored. In fact, the court calculated the offense level departure by allocating one offense level for every three of those twelve points, which yielded an offense level of 25 and an advisory Guidelines range of 110 to 137 months. The court alternatively performed the same calculation utilizing its determination that seventeen additional criminal history points were justified, resulting in an offense level of 26 and a Guidelines range of 120 to 150 months. Ultimately, the court settled on and fixed the Guidelines range for Rivera-Santana at 120 to 150 months.
Nevertheless, having endeavored to fashion an appropriate sentence by way of its two departures, the court concluded that the advisory Guidelines range of 120 to 150 months was yet inadequate, and thus proceeded to implement an upward variance to the 240-month statutory maximum. Hence, notwithstanding the court's consideration of the alternative departure ranges, it is clear that the court would have imposed the same upward variance to the statutory maximum—whether from the Guidelines range of 110 to 137 months, or from the court-ascertained Guidelines range of 120 to 150 months.
As a result, we are, in any event, entitled to affirm the sentence imposed—assuming its substantive reasonableness— because any procedural error that may have been made in calculating either of the two departures would necessarily be harmless. See Savillon-Matute, 636 F.3d at 123-24 (agreeing that "it would make no sense to set aside a reasonable sentence and send the case back to the district court since it has already told us that it would impose exactly the same sentence, a sentence we would be compelled to affirm" (internal quotation marks and alteration omitted)).
Rivera-Santana next contends that the district court procedurally erred by failing to employ the incremental approach in its two upward departures. See United States v. Dalton, 477 F.3d 195, 199 (4th Cir.2007) (requiring sentencing court to "depart incrementally" in assessing upward departure from highest criminal history category); see also United States v. Rusher, 966 F.2d 868, 884 (4th Cir.1992) (requiring sentencing court to explain inadequacies of next higher criminal history category before upwardly departing within existing criminal history categories). Although Rivera-Santana recognizes that the court was not required to "move only one level, or to explain its rejection of each and every intervening level," see Dalton, 477 F.3d at 199 (internal quotation marks omitted), he maintains that the court made no effort to consider and reject any of the intervening levels between level 21 and criminal history category IV, on the one hand, and level 26 and criminal history category VI, on the other.
As we have explained, a sentencing court is under no obligation to "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." Dalton, 477 F.3d at 199 (citation, internal quotation marks, and alterations omitted). In this case, however, it is apparent that the court employed a well-reasoned process—assigning criminal history points for unscored offenses to move horizontally to the highest criminal history category, then allocating one offense level for each group of three unscored criminal history points to move vertically down the sentencing table to successively higher offense levels.
It bears repeating that, even if the sentencing court had failed to utilize a proper incremental analysis, any procedural error would be harmless because the upward variance based on the § 3553(a) factors justified the sentence imposed. See United States v. Evans, 526 F.3d 155, 165 (4th Cir.2008). The court acknowledged the advisory nature of the Guidelines, and it thoroughly discussed the relevant § 3553(a) factors: the serious nature of Rivera-Santana's prior offenses, particularly the murder of his pregnant wife and the sexual assault of his eight-year-old granddaughter; his dogged defiance and lack of respect for the law, having repeatedly
In the last of his four procedural contentions, Rivera-Santana argues that the district court, in implementing the variance, failed to consider any mitigating factors or the need to avoid unwarranted sentencing disparities in weighing the § 3553(a) factors. As we have recognized, however, a sentencing court need not "explicitly discuss" each factor "on the record" or "robotically tick through § 3553(a)'s every subsection." See United States v. Johnson, 445 F.3d 339, 345 (4th Cir.2006) (internal quotation marks omitted). Although we are obliged to carefully scrutinize a court's reasoning for a sentence outside the advisory Guidelines range, we will credit an articulation as "clear and appropriate," when the reasons "can be matched to a factor appropriate for consideration" and tailored to the defendant's situation. See United States v. Moulden, 478 F.3d 652, 658 (4th Cir.2007). In this situation, it is evident that the court deemed the factors argued in mitigation, such as Rivera-Santana's age and health problems, as entirely insufficient to outweigh the aggravating factors. And it was well within the court's discretion to accord more weight to the host of aggravating factors and decide that the sentence imposed would serve "the § 3553 factors, on a whole." See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); see also United States v. Jeffery, 631 F.3d 669, 679 (4th Cir.2011) (observing that "district courts have extremely broad discretion when determining the weight to be given each of the § 3553(a) factors").
Likewise, we are satisfied that the district court, in fashioning its sentence, considered "the need to avoid unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct." See 18 U.S.C. § 3553(a)(6). During the sentencing colloquy, the court repeatedly emphasized that this was an atypical case and that, given Rivera-Santana's criminal history, he constituted an "anathema to society." See J.A. 158. As we have previously explained,
United States v. Montes-Pineda, 445 F.3d 375, 381 (4th Cir.2006); see also United States v. Pergola, 930 F.2d 216, 220 (2d Cir.1991) ("Implicit in any statement that the maximum is required is the thought that anything less would be insufficient.").
In pursuing this contention, Rivera-Santana relies on various sentencing statistics and authorities that are entirely unconvincing. Courts have repeatedly made clear that comparisons of sentences may be treacherous because each sentencing proceeding is inescapably individualized
Finally, Rivera-Santana contends that his 240-month sentence is substantively unreasonable, arguing that it is greater than necessary to achieve the aims of § 3553(a). In pursuing this contention, he emphasizes the degree of the variance (90 months above the advisory Guidelines range), and maintains that it actually amounts to a life sentence, given his age and poor health. That a variance sentence deviates significantly from the advisory Guidelines range, however, does not alone render it presumptively unreasonable. See Abu Ali, 528 F.3d at 261. Indeed, "a sentence that deviates from the Guidelines is reviewed under the same deferential abuse-of-discretion standard as a sentence imposed within the applicable guidelines range." Id. Put simply, the sentencing court's decision to vary upward to the statutory maximum reflects a thorough, individualized assessment of Rivera-Santana's situation, in light of the § 3553(a) factors. Because the court did not abuse its discretion, we are obliged to accord deference to its sentencing decisions. See United States v. Diosdado-Star, 630 F.3d 359, 367 (4th Cir.2011) (affirming sentence six years above advisory Guidelines range where court properly explained its decision pursuant to § 3553(a) factors); Evans, 526 F.3d at 165-66 (upholding reasonableness of sentence eight years above advisory Guidelines range where court provided ample reasons why § 3553(a) factors, "on the whole, justified the sentence"). In these circumstances, therefore, the 240-month sentence imposed on Rivera-Santana is substantively reasonable and must be affirmed.
Pursuant to the foregoing, we reject each of Rivera-Santana's appellate contentions and affirm.
AFFIRMED
See J.A. 158-59.