United States v. Rivera–Santana

• Decision Date: 02 February 2012
• Docket Number: No. 10–5123.,10–5123.
• Citation: 668 F.3d 95
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Agustin RIVERA–SANTANA, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

668 F.3d 95

UNITED STATES of America, Plaintiff–Appellee,

v.Agustin RIVERA–SANTANA, Defendant–Appellant.

No. 10–5123.

United States Court of Appeals, Fourth Circuit.

Argued: Oct. 28, 2011.Decided: Feb. 2, 2012.

ARGUED: Mary Elizabeth Maguire, Office of the Federal Public Defender, Richmond, Virginia, for Appellant. Stephen David Schiller, Office of the United States Attorney, Richmond, Virginia, for Appellee. ON BRIEF: Michael S. Nachmanoff, Federal Public Defender, Alexandria, Virginia, Patrick L. Bryant, Office of the Federal Public Defender, Richmond, Virginia, for Appellant. Neil H. MacBride, United States Attorney, Alexandria, Virginia, for Appellee.

Before WILKINSON, KING, and DIAZ, Circuit Judges.

Affirmed by published opinion. Judge KING wrote the opinion, in which Judge WILKINSON and Judge DIAZ joined.

OPINION

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.

I.

A.

Rivera–Santana was born in Mexico in 1956.¹ In 1973, he came to the United States as a lawful permanent resident and worked as an agricultural laborer in California. On December 20, 1974, Rivera–Santana was convicted of reckless driving in California and sentenced to 125 days in jail. In the 1970s and early 1980s, he was arrested four more times in California: for drunk driving in January 1975 and again in April 1975; for grand theft in 1981; and for assault and battery in 1983.²

In 1988, Rivera–Santana shot and killed his pregnant wife. He was thereafter convicted in California of voluntary manslaughter and received an eighteen-year sentence. Rivera–Santana was paroled from prison on January 29, 1998, and was deported to Mexico on February 7, 1998. Just a few days later, on February 16, 1998, he reentered the United States illegally. On that occasion, Rivera–Santana was attempting to smuggle other aliens across the border. He was arrested by border patrol agents the next day, February 17, 1998, and deported to Mexico a week later. On March 1, 1998, a mere five days after being deported, Rivera–Santana illegally reentered this country a second time, evading apprehension until August 16, 2000, when he was arrested in California for driving under the influence (“DUI”). He nevertheless remained in the United States for another year, until being arrested on May 7, 2001, by agents of the Immigration and Naturalization Service. On May 10, 2001, Rivera–Santana's prior removal order was reinstated, and he was deported again on June 12, 2001.

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).³ On June 23, 2010, Rivera–Santana entered a plea of guilty to that offense, which carries a statutory maximum of 240 months in prison. The stipulated statement of facts filed during Rivera–Santana's plea proceedings reflects that his voluntary manslaughter conviction in California constitutes an aggravated felony under § 1326(b)(2). See J.A. 24.

B.

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 Guidelines range of 57 to 71 months.⁴ On September 10, 2010, the government moved for an upward variance, requesting that Rivera–Santana receive the 240–month statutory maximum.

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.⁵ The court's revised total of twenty-five criminal history points elevated Rivera–Santana's criminal history category to VI (the highest possible).

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:

[Rivera–Santana's] history bespeaks a very dangerous person. It bespeaks one of the most dangerous people I've ever seen before this Court. It bespeaks a person who habitually, continually commits crimes, benefits not at all from leniency which has been extended in a number of ways and occasions as is outlined in the [PSR], and that there is—one of the most effectively demonstrated tendencies to recidivate I have seen since I came on the bench in 1992.

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 offense level for every three of the seventeen unscored criminal history points, raising the offense level by five levels, from 21 to 26. With a criminal history category of VI, the second departure authorized the court to establish the advisory Guidelines range at 120 to 150 months.

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.⁶ In elaborating on the § 3553(a) factors and in further justification for a variance to the statutory maximum, the court explained:

This man has proved for years that he is a danger to society. He has proved for years that he has no respect for the law. He has proved for years that it is necessary to take strong action to protect the public. A man who will kill his wife, pregnant wife, and kill his own child and molest his granddaughter has no respect for the law and is a menace and ... a proven danger to the public, to the citizenry of the nation that he has chosen on multiple occasions illegally to invade, and when he comes here, he violates all kinds of laws, any kind of law that stands in the way of accomplishing what he wants to do.

If he wants to gratify himself, he plunders an eight-year-old child. If he wants to have some company or make some money, he smuggles illegal aliens. He gets deported, he comes right back. He drives drunk. He steals, he beats. He is, in short, an anathema to society.

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).

II.

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, just outside, or significantly outside the Guidelines range.” See United States v. Savillon–Matute, 636 F.3d 119, 122 (4th Cir.2011) (internal quotation marks...