UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 08-4074

UNITED STATES OF AMERICA, 

 Plaintiff – Appellee, 

 v. 

EDGAR ANTONIO LAGUNAS-OCAMPO, a/k/a Edgar Luguna-OCampo, 

 Defendant – Appellant. 

Appeal from the United States District Court for the Eastern 

District of North Carolina, at New Bern. Louise W. Flanagan, 

Chief District Judge. (5:07-cr-00171-FL-1) 

Submitted: January 14, 2009 Decided: February 20, 2009 

Before NIEMEYER, GREGORY, and AGEE, Circuit Judges. 

Affirmed by unpublished per curiam opinion. 

Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, 

Assistant Federal Public Defender, Raleigh, North Carolina, for 

Appellant. George E. B. Holding, United States Attorney, Anne 

M. Hayes, Jennifer P. May-Parker, Assistant United States 

Attorneys, Raleigh, North Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.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

 Edgar Antonio Lagunas-OCampo appeals his conviction 

and eighty-five month sentence after entering a guilty plea to 

illegal reentry of an aggravated felon, in violation of 8 U.S.C. 

§ 1326 (2006). Lagunas-OCampo’s sole contention on appeal is 

that his departure sentence, which was fourteen months longer 

than the high end of his original Guidelines range, is 

unreasonable and should be vacated. Finding no error, we 

affirm. 

 After United States v. Booker, 543 U.S. 220 (2005), a 

sentence is reviewed for reasonableness, using an abuse of 

discretion standard of review. Gall v. United States, 128 S. 

Ct. 586, 597 (2007). The first step in this review requires the 

court to ensure that the district court committed no significant 

procedural error, such as improperly calculating the Guidelines 

range. United States v. Evans, 526 F.3d 155, 161 (4th Cir. 

2008). Lagunas-OCampo claims no procedural error. 

 Accordingly, this court must next consider the 

substantive reasonableness of the sentence imposed, taking into 

account the totality of the circumstances. Id. at 161-62. 

While the court may presume that a sentence within the 

Guidelines range is reasonable, it may not presume that a 

sentence outside the Guidelines range is unreasonable. Gall, 

128 S. Ct. at 597; see United States v. Dalton, 477 F.3d 195, 

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197 (4th Cir. 2007) (holding that a district court’s decision to 

depart is reviewed for reasonableness). Rather, in reviewing a 

sentence outside the Guidelines range, this court must 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) (citation omitted). 

 This court will find a sentence to be unreasonable if 

the sentencing “court provides an inadequate statement of 

reasons or relies on improper factors in imposing a sentence 

outside the properly calculated advisory sentencing range.” Id.

at 123. The court must, however, give due deference to the 

district court’s decision that the 18 U.S.C. § 3553(a) (2006) 

factors justify the sentence. Evans, 526 F.3d at 162. Even if 

this court would have imposed a different sentence, this fact 

alone is insufficient to justify vacatur of the district court’s 

sentence. Id. 

 We find that the district court’s eighty-five month 

departure sentence was substantively reasonable. Under the 

Guidelines, a district court may depart upward from an 

applicable Guidelines range if “reliable information indicates 

that the defendant’s criminal history category substantially 

under-represents the seriousness of the defendant’s criminal 

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history or the likelihood that the defendant will commit other 

crimes . . . .” U. S. Sentencing Guidelines Manual (“USSG”) 

§ 4A1.3(a)(1) (2007); see United States v. Dixon, 318 F.3d 585, 

588-89 (4th Cir. 2003) (noting that under-representative 

criminal history category “is an encouraged basis for 

departure”). 

 To determine whether a departure sentence is 

appropriate in such circumstances, the Guidelines explicitly 

state that a court may consider prior sentences not used in the 

criminal history calculation. See USSG § 4A1.3(a)(2) (2007). 

This court has also recognized that probation and parole 

violations may be considered when assessing the likelihood of 

recidivism. See United States v. Lawrence, 349 F.3d 724, 728 

(4th Cir. 2003). Accordingly, the district court appropriately 

considered Lagunas-OCampo’s prior uncounted criminal history and 

repeated failure to abide by the terms of his probation to 

determine that a departure sentence was warranted.* 

 The district court also provided an adequate statement 

of reasons why it was issuing a departure sentence. Notably, 

 *

 Although Lagunas-OCampo summarily asserts that the 

district court’s departure sentence punished him three times for 

the same criminal conduct, this assertion is belied by the fact 

that the district court explicitly indicated that it was 

increasing Lagunas-OCampo’s criminal history category based on 

criminal history not considered by the probation officer in his 

original Guidelines range calculation. 

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the district court thoroughly reviewed and analyzed 

Lagunas-OCampo’s unscored criminal history and accurately 

highlighted the fact that Lagunas-OCampo repeatedly refused to 

comply with his supervised release terms, thereby evidencing a 

disregard for United States law. The district court did so not 

only at sentencing, but also in a sentencing memorandum more 

thoroughly explaining its rationale for the departure sentence. 

Given Lagunas-OCampo’s extensive criminal history and numerous 

parole violations, the district court’s meaningful articulation 

of its consideration of the § 3553(a) factors, and its careful 

consideration of factors appropriately viewed when departing 

from the recommended Guideline range, we find that the extent of 

the departure was reasonable, as well. Cf. United States 

v. Davenport, 445 F.3d 366, 372 (4th Cir. 2006) (holding that a 

sentence more than three times the top of the advisory 

Guidelines range was unreasonable where the factors relied upon 

by the district court did not justify such a sentence and the 

court failed to explain how the variance sentence served the 

§ 3553(a) factors), overruled in part on other grounds by, 

Irizarry v. United States, 128 S. Ct. 2198 (2008). 

 Based on the foregoing, we affirm the district court’s 

judgment. 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