United States v. Martin Lopez-Gonzalo

MEMORANDUM

Defendant-Appellant Martin Lopez-Gonzalo appeals his 36-month sentence for illegal reentry after deportation, 8 U.S.C. § 1326 . We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.

1. The district court did not plainly err in failing to expressly consider U.S.S.G. § 4A1.3, a policy statement concerning “departures based on inadequacy of criminal history.” It is not clear that § 4A1.3 is a “pertinent policy statement” that the district court was required to consider under 18 U.S.C. § 3553 (a)(5). Unlike the out-of-circuit cases that Lopez cites, United States v. Hodge, 469 F.3d 749 (8th Cir.2006), and United States v. Engle, 592 F.3d 495 (4th Cir.2010), the district court’s upward variance was not directly contrary to § 4A1.3. The sentencing transcript indicates that the district court varied upwards not because he thought Lopez’s criminal history category underrepresented the seriousness of his criminal history, but primarily because Lopez’s prior 27-month sentence failed to deter him from committing the same offense six weeks after being released from prison. Therefore, the district court did not plainly commit procedural error.

2. The district court did not…