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Court Upholds Sentence Six Years Over Guidelines Range

A Mexican immigrant who has been deported once has his 84-month sentence for possession of a counterfeit green card and for being found here after a prior deportation affirmed by the 4th Circuit, even though his term in prison is more than six years above the top of the recommended guidelines range.

At the sentencing hearing, the district court decided to “vary in the sentencing,” based on the following factors: 1) defendant had a criminal record of four prior convictions to obtain property by false pretenses, 2) calculated to deceive people who were very vulnerable because they did not have the right to come to the U.S.; 3) he had 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; 4) he was on probation when he committed the instant offense; and 5) he has a devoted family in the U.S., which gives him a strong motivation to recidivate and re-enter the U.S.

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 defendant to 24 months in prison for count I and 60 months in prison for count II, to run consecutively for a total of 84 months.

The court rejects defendant’s argument that the district court procedurally erred in deviating from the guidelines range. The sentence likewise is substantively reasonable.

The district court sentenced defendant to a term in prison in excess of six years above the top of the recommended guidelines range. While this increase is certainly substantial, it does not constitute an abuse of discretion based on the totality of the circumstances. The district court properly considered and fully explained its decision pursuant to the factors in § 3553(a), particularly factor § 3553(a)(1): the nature and circumstances of the offense and the history and characteristics of the defendant. The extent and seriousness of defendant’s conduct was considerable.

Defendant admitted to impersonating a Border Patrol Agent in furtherance of his scheme to perpetrate a fraud upon many vulnerable victims. He also gleaned a substantial financial profit from the fraud.

The district court noted that defendant’s likelihood of recidivism was high, thus recognizing the need to protect the public from further crimes of defendant. We conclude we must give due deference to the district court’s reasoned and reasonable decision that the § 3553(a) factors, on the whole, justified a sentence of 84 months in prison.

Sentence affirmed.

U.S. v. Diosdado-Star (Agee, J.) No. 09-4723, Jan. 24, 2011; USDC at Raleigh, N.C. (Fox) Stephen C. Gordon, FPD; Ethan A. Ontjes, AUSA. VLW 011-2-017, 13 pp.

VLW 011-2-017

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