UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-4599

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

LAZARO GUTIERREZ-BUSTOS, a/k/a Lazaro Bustos,

Defendant - Appellant.

Appeal from the United States District Court for the Middle 

District of North Carolina, at Durham. Thomas D. Schroeder, 

District Judge. (1:08-cr-00373-TDS-1)

Submitted: October 28, 2011 Decided: December 5, 2011

Before NIEMEYER and GREGORY, Circuit Judges, and HAMILTON, 

Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Eugene E. Lester, III, SHARPLESS & STAVOLA, PA, Greensboro, 

North Carolina, for Appellant. Ripley Rand, United States 

Attorney, Terri-Lei O’Malley, Assistant United States Attorney, 

Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Lazaro Gutierrez-Bustos pled guilty to one count of 

illegal reentry of a deported alien who had previously been 

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

§ 1326(a), (b)(2) (2006). The district court sentenced him to 

eighty-two months’ imprisonment and he now appeals. Finding no 

error, we affirm. 

Gutierrez-Bustos challenges the district court’s 

imposition of a departure sentence pursuant to U.S. Sentencing 

Guidelines Manual (“USSG”) § 4A1.3 (2008). We review a sentence 

for reasonableness, applying an abuse of discretion standard. 

Gall v. United States, 552 U.S. 38, 51 (2007); see also United 

States v. Layton, 564 F.3d 330, 335 (4th Cir. 2009). In so 

doing, we first examine the sentence for “significant procedural 

error,” including “failing to calculate (or improperly 

calculating) the Guidelines range, treating the Guidelines as 

mandatory, failing to consider the [18 U.S.C.] § 3553(a) 

[(2006)] factors, selecting a sentence based on clearly 

erroneous facts, or failing to adequately explain the chosen 

sentence . . . .” Gall, 552 U.S. at 51. Finally, this court 

considers the substantive reasonableness of the sentence, 

“tak[ing] into account the totality of the circumstances, 

including the extent of any variance from the Guidelines range.” 

Id.
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When reviewing a departure, we consider “whether the 

sentencing court acted reasonably both with respect to its 

decision to impose such a sentence and with respect to the 

extent of the divergence from the sentencing range.” United 

States v. Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir. 

2007). Under USSG § 4A1.3(a)(1), “[i]f reliable information 

indicates that the defendant’s criminal history category 

substantially under-represents the seriousness of the 

defendant’s criminal history or the likelihood that the 

defendant will commit other crimes, an upward departure may be 

warranted.” We have thoroughly reviewed the record and conclude

that the district court’s decision to upwardly depart was 

reasonable, the extent of the departure is reasonable and 

supported by the record, and the court adequately explained both 

its decision to depart and the extent of its departure. See

United States v. Lawrence, 349 F.3d 724, 727-28 (4th Cir. 2003). 

Finally, we find Gutierrez-Bustos’ assertion that the district 

court should have departed downward sua sponte on the basis of 

cultural assimilation to be without merit.

Accordingly, we affirm the judgment of the district 

court. We dispense with oral argument because the facts and 

legal contentions are adequately presented in the materials 
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before the court and argument would not aid the decisional 

process.

AFFIRMED