US v. Lazaro Gutierrez-Bustos, No. 09-4599 (4th Cir. 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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4599 UNITED STATES OF AMERICA, Plaintiff Appellee, v. LAZARO GUTIERREZ-BUSTOS, a/k/a Lazaro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GREGORY, Court for the Middle Thomas D. Schroeder, Decided: Circuit Judges, December 5, 2011 and HAMILTON, Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit. 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 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 before the court and argument would not aid the decisional process. AFFIRMED 4
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