UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-4785

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DAVID AMEZQUITA-FRANCO,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Richmond. Henry E. Hudson, District 

Judge. (3:12-cr-00052-JRS-1)

Submitted: March 29, 2013 Decided: May 1, 2013

Before DAVIS, KEENAN, and DIAZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Michael S. Nachmanoff, Federal Public Defender, Frances H. 

Pratt, Valencia D. Roberts, Assistant Federal Public Defenders, 

Nicholas J. Xenakis, Research & Writing Attorney, Richmond, 

Virginia, for Appellant. Neil H. MacBride, United States 

Attorney, Erik S. Siebert, Assistant United States Attorney, 

Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

David Amezquita-Franco, a native and citizen of 

Guatemala, pled guilty pursuant to a written plea agreement to 

one count of illegal reentry of a deported alien after being 

convicted of an aggravated felony in violation of 8 U.S.C. 

§§ 1326(a), (b)(2) (2006). The court imposed a variance 

sentence of eighty-seven months of imprisonment. AmezquitaFranco appeals, raising two issues: (1) whether his sentence was 

unreasonable; and (2) whether the district court plainly erred 

by imposing a three-year term of supervised release when he 

likely will be deported. For the reasons that follow, we 

affirm.

We review a sentence imposed by a district court for 

reasonableness, applying a deferential abuse-of-discretion 

standard. United States v. Rivera–Santana, 668 F.3d 95, 100 

(4th Cir.), cert. denied, 133 S. Ct. 274 (2012). The first step 

in our review requires us to ensure that the district court did 

not commit significant procedural error, such as improperly 

calculating the Sentencing Guidelines range, failing to consider 

the factors under 18 U.S.C. § 3553(a) (2006), or failing to 

adequately explain the sentence. United States v. Carter, 564 

F.3d 325, 328 (4th Cir. 2009). We then review the sentence for 

substantive reasonableness, taking into account the totality of 
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the circumstances. United States v. Strieper, 666 F.3d 288, 295 

(4th Cir. 2012).

Amezquita-Franco contends that the court erred 

procedurally in departing upward based on an inadequate criminal 

history category because the court failed to use an incremental 

approach as set forth in United States v. Rusher, 966 F.2d 868, 

884-85 (4th Cir. 1992), and jumped directly from a category III 

to category V criminal history. A sentencing court, however, is 

under no obligation to “incant the specific language used in the 

guidelines, or go through a ritualistic exercise in which it 

mechanically discusses each criminal history category or offense 

level it rejects en route to the category or offense level that 

it selects.” Rivera–Santana, 668 F.3d at 104 (quoting United 

States v. Dalton, 477 F.3d 195, 199 (4th Cir. 2007)). Further, 

even if the sentencing court “failed to utilize a proper 

incremental analysis,” any procedural error may be harmless if

“the upward variance based on the § 3553(a) factors justified 

the sentence imposed.” Id. at 104.

Here, the district expressly found that AmezquitaFranco’s criminal history was under-represented and that 

category III and IV were insufficient to account for criminal 

activity that included sexual crimes against a girl younger than 

fourteen years of age. Moreover, Amezquita-Franco had illegally 

reentered the United States on at least nine occasions, and had 
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convictions for driving while impaired and other traffic 

infractions. The district court adequately explained its 

sentence by reference to the 18 U.S.C. § 3553(a) factors, which 

the court expressly considered. United States v. Grubbs, 585 

F.3d 793, 804 (4th Cir. 2009). The court noted that a longer 

sentence was needed for deterrence, for a just punishment, to 

protect the community, and to promote respect for the law. The 

court found that a sentence within the 70-87 month range, based 

on Amezquita-Franco’s total offense level of 21 and his 

increased criminal history of V, was adequate but not greater 

than necessary to accomplish the goals of sentencing set out in 

§ 3553(a). 

Amezquita-Franco next argues that his sentence was 

substantively unreasonable because his advisory sentencing range 

as calculated in the presentence report was 46-57 months of 

imprisonment. We review the substantive reasonableness of the 

sentence under the totality of the circumstances. Strieper, 666 

F.3d at 295. A sentencing court must “impose a sentence 

sufficient, but not greater than necessary, to comply with the 

purposes set forth in [§ 3553(a)(2)].” 18 U.S.C. § 3553(a). In 

determining whether a variance sentence is reasonable, we must 

consider whether the degree of variance is supported by the 

court’s justification, with a larger variance requiring more 

substantial justification. United States v. Diosdado-Star, 630 
5

F.3d 359, 366 (4th Cir. 2011). We will, however, affirm if “the 

§ 3553(a) factors, on the whole, justified the sentence” 

imposed. Id. at 367 (internal quotation marks omitted). Even 

if we would have reached a different sentencing result on our 

own, this fact alone is insufficient to justify reversal of the 

district court. United States v. Pauley, 511 F.3d 468, 474 (4th 

Cir. 2007).

Here, the district court adequately explained its

variance sentence and justified the sentence imposed. 

Certainly, given the high number of deportations, the 

seriousness of the offenses against the minor, and the driving 

while impaired and other traffic offenses guided the court’s 

decision. The district court considered arguments from the 

parties, listened to Amezquita-Franco, and expressly explained 

its above Guidelines range sentence, specifically addressing 

various § 3553(a) factors. Under these circumstances, we find 

that the sentence was substantively reasonable. 

Next, Amezquita-Franco argues that the district court 

erred by imposing a three-year term of supervised release. 

Amezquita-Franco concedes that the standard of review for this 

issue is plain error, as he is raising this issue for the first 

time on appeal. United States v. Maxwell, 285 F.3d 336, 339 

(4th Cir. 2002) (providing review standard for plain error). 

The Guidelines normally counsel against imposing a term of 
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supervised release for someone who is a deportable alien. See

U.S. Sentencing Guidelines Manual (“USSG”) § 5D1.1(c) (2011). 

Nonetheless, courts are encouraged to consider imposing a term 

of supervised release on a deportable alien if the court

determines that such an imposition would provide an added 

measure of deterrence and protection based on the facts and 

circumstances of a particular case. See USSG § 5D1.1 cmt. n.5. 

Here, the court was expressly concerned about deterrence and 

protection, given Amezquita-Franco’s repeated reentries into 

this country and his sexual crimes against a person under the 

age of fourteen. Thus, we conclude that the imposition of a 

term of supervised release was not plain error. 

Accordingly, we affirm Amezquita-Franco’s sentence. 

We dispense with oral argument because the facts and legal 

contentions are adequately presented in the materials before 

this court and argument would not aid the decisional process.

AFFIRMED