U.S. v. Diosdado–star

• Decision Date: 24 January 2011
• Docket Number: No. 09–4723.,09–4723.
• Citation: 630 F.3d 359
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Roberto DIOSDADO–STAR, a/k/a Robert Guerrera, a/k/a S.P. Guitierez–Llanas, a/k/a Steve Collins, a/k/a Robert Star, a/k/a Jorge Villereal–Julio, a/k/a Esteban Gonzalez–Rivera, a/k/a Jorge Jorge–Villareal, a/k/a Roberto Herrera, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

630 F.3d 359

UNITED STATES of America, Plaintiff–Appellee,

v.Roberto DIOSDADO–STAR, a/k/a Robert Guerrera, a/k/a S.P. Guitierez–Llanas, a/k/a Steve Collins, a/k/a Robert Star, a/k/a Jorge Villereal–Julio, a/k/a Esteban Gonzalez–Rivera, a/k/a Jorge Jorge–Villareal, a/k/a Roberto Herrera, Defendant–Appellant.

No. 09–4723.

United States Court of Appeals, Fourth Circuit.

Argued: Dec. 10, 2010.Decided: Jan. 24, 2011.

ARGUED: Stephen Clayton Gordon, Office of the Federal Public Defender, Raleigh, North Carolina, for Appellant. Ethan A. Ontjes, Office of the United States Attorney, Raleigh, North Carolina, for Appellee. ON BRIEF: Thomas P. McNamara, Federal Public Defender, Raleigh, North Carolina, for Appellant. George E.B. Holding, United States Attorney, Anne M. Hayes, Assistant United States Attorney, Office of the United States Attorney, Raleigh, North Carolina, for Appellee.Before AGEE and DAVIS, Circuit Judges, and David A. FABER, Senior United States District Judge for the Southern District of West Virginia, sitting by designation.Affirmed by published opinion. Judge AGEE wrote the opinion, in which Judge DAVIS and Senior Judge FABER concurred.

OPINION

AGEE, Circuit Judge:

Roberto Diosdado–Star (“Diosdado–Star”) pled guilty to one count of being found in the United States after having been excluded, deported, and removed from the United States, in violation of 8 U.S.C. § 1326(a), and one count of possessing a counterfeit United States Resident Alien card, in violation of 18 U.S.C. § 1546(a). Diosdado–Star appeals his sentence of 84 months' imprisonment. For the following reasons, we affirm the district court's judgment.

I.

Diosdado–Star, a citizen of Mexico, unlawfully entered the United States in 1991. In 2002, he was arrested in Texas for an immigration violation and deported to Mexico, but illegally returned without detection to North Carolina during the same month.

In 2006, Immigration and Customs Enforcement (“ICE”) launched an internal investigation of a Border Patrol Agent (“BPA”) named Roberto Herrera, who was suspected of misconduct. During the course of the investigation ICE agents discovered that Diosdado–Star had been using the pseudonym “Roberto Herrera,” along with several other aliases, and fraudulently representing himself to be a BPA. Diosdado–Star was suspected to have done so “in an effort to defraud unsuspecting Hispanic aliens into believing that either they or their family members could obtain legitimate immigration documents for large amounts of U.S. currency.” (J.A. 138). Diosdado–Star never supplied any such documents to the victims, although he took substantial payments from them as well as their “Social Security cards, birth certificates, driver's licenses, passports, Permanent Resident Alien cards, marriage licenses, tax returns, pay stubs, and utility bills.” (J.A. 138).

As a result of this investigation, ICE agents arrested Diosdado–Star at his residence in Raleigh in 2008. During a search of his home, agents discovered photos on a laptop computer of Diosdado–Star wearing a BPA uniform, $3,000 in cash, and “Social Security cards, Mexican birth certificates, Texas driver's licenses/identification cards, Mexican passports, Permanent Resident Alien cards, Mexican marriage licenses, tax returns, pay stubs, and utility bills” belonging to five different victims. (J.A. 139). During a search of Diosdado–Star's vehicle, agents discovered a fraudulent Permanent Resident Alien card and a fraudulent Social Security card. During a search of Diosdado–Star's garage, agents found identification information relating to “an additional 51 victims,” and discovered that Diosdado–Star had “deposited approximately $177,000 in U.S. currency into his various bank accounts between February 2006 and September 2008” and “spent large amounts of money on vehicles, car accessories, and large appliances for his home,” (J.A. 139), even though he had no record of employment. Diosdado–Star “admitted [to ICE agents] to being a citizen of Mexico who was previously deported ... [and] admitted to illegally reentering the United States ... and to posing as a BPA to defraud illegal aliens.” (J.A. 139).

Diosdado–Star was charged with and pled guilty to (1) being found in the United States after being deported, for which the statutory maximum term of imprisonment is two years, and (2) possessing a counterfeit resident alien card, for which the statutory maximum term of imprisonment is ten years. The Presentence Investigation Report (“PSR”) calculated his Guidelines range for the two charges to be a total of four to ten months' imprisonment, but noted that a departure may be warranted under either U.S.S.G. § 5K2.21, Dismissed and Uncharged Conduct, or U.S.S.G. § 4A1.3, Inadequacy of Criminal History Category, due to his “additional criminal conduct related to impersonating a federal law enforcement officer to defraud numerous illegal immigrants.” (J.A. 147).

At the sentencing hearing, the district court decided to “vary in the sentencing,” (J.A. 113), based on the following factors: Diosdado–Star (1) had a “criminal record consist[ing] of four prior convictions to obtain property by false pretenses,” (J.A. 112); (2) “calculated to deceive ... people ... [who] were very vulnerable because they did not have the right to come to the United States,” (J.A. 112); (3) “ha[d] acquired substantial amounts of money,” “purchased two vehicles and an extensive array of home furnishings,” “had cash in the amount of $3,900 seized from him during the first search of the residence although he has no record of employment,” and “$25,000 was turned over by his family after his arrest,” (J.A. 112–13); (4) “was on probation when he committed the instant offense”; and (5) “has a devoted family [in the United States], which gives him a strong motivation to recidivate and re-enter the United States.” (J.A. 113).

On the basis of these factors as well as “the advisory guidelines and those in 18 U.S.C. § 3553(a),” the district court sentenced Diosdado–Star to 24 months' imprisonment for Count 1 and 60 months' imprisonment for Count 2, to run consecutively for a total of 84 months' imprisonment. (J.A. 113). Diosdado–Star timely filed an appeal from the judgment of the district court and this Court has jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

II.

On appeal, Diosdado–Star argues that his sentence is both procedurally and substantively unreasonable. He contends that the district court procedurally erred by failing to “first address[ ] a departure before imposing a purportedly non-guidelines sentence.” (Appellant's Br. 17). In support of this contention, he relies on language in this Court's decision in United States v. Moreland, 437 F.3d 424 (4th Cir.2006), for the proposition that “when selecting a sentence outside of the correctly-calculated guideline range, the district court should first look to whether a departure is appropriate based on the Guidelines Manual or relevant case law.” (Appellant's Br. 15) (quotations omitted). Diosdado–Star asserts Moreland requires “that a court first look to the guidelines' departure provisions before varying,” (Appellant's Br. 16), and that this requirement was not overruled by the Supreme Court's subsequent decision in Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Diosdado–Star further contends that he was prejudiced by the district court's decision to impose a variance rather than a departure because he “had no opportunity to argue against being placed in a higher criminal history category.” (Appellant's Br. 19).

Diosdado–Star also asserts that his sentence is substantively unreasonable because “the extent of the variance ... lacked the ‘compelling’ reasons required to justify sentences that substantially deviate from the advisory guideline range.” (Appellant's Br. 20–21).

This Court reviews a sentence for reasonableness, applying an abuse of discretion standard. Gall, 552 U.S. at 51, 128 S.Ct. 586. In reviewing the reasonableness of a sentence, “[w]e must ‘first ensure that the district court committed no significant procedural error....’ ” United States v. Morace, 594 F.3d 340, 345 (4th Cir.2010) (quoting Gall, 552 U.S. at 51, 128 S.Ct. 586). Procedural errors include “failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 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.” Gall, 552 U.S. at 51, 128 S.Ct. 586. “If we find no significant procedural error, we must ‘then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.’ ” Morace, 594 F.3d at 345–46 (quoting Gall, 552 U.S. at 51, 128 S.Ct. 586).

A.

Diosdado–Star relies heavily on our decision in Moreland to support his argument that the district court procedurally erred by imposing a variant sentence instead of first applying applicable departure provisions from the Guidelines. In Moreland we stated that,

in imposing a sentence after Booker, the district court must engage in a multi-step process. First, the court must correctly determine, after making appropriate findings of fact, the applicable guideline range. Next, the court must determine whether a sentence within that range ... serves the factors set forth in § 3553(a) and, if not, select a sentence [within statutory limits] that does serve those factors. In doing so, the district court should first look to whether a departure is appropriate based on the Guidelines Manual or relevant case law.... If an appropriate basis for departure exists, the district court may depart. If the resulting departure range still does not serve the factors set forth in § 3553(a), the court may then elect to impose a non-guideline sentence (a “variance sentence”).

437 F.3d at 432 (...