UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-4778

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

RAFAEL RADHAMES DE LA ROSA,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of North Carolina, at Raleigh. Louise W. Flanagan, Chief

District Judge. (CR-05-11)

Submitted: May 31, 2006 Decided: June 9, 2006

 

Before NIEMEYER, MICHAEL, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,

Assistant Federal Public Defender, Diana H. Cap, Research and

Writing Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh,

North Carolina, for Appellant. Frank D. Whitney, United States

Attorney, Anne M. Hayes, Assistant United States Attorney, Jennifer

May-Parker, Assistant United States Attorney, OFFICE OF THE UNITED

STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
2

PER CURIAM:

Rafael Radhames De La Rosa pled guilty to illegal reentry

after deportation. See 8 U.S.C. §§ 1326(a) and (b)(2). The

district court sentenced him to 52 months imprisonment. De La Rosa

now appeals his sentence. For the reasons outlined below, we

affirm.

I.

The underlying facts are not in dispute. De La Rosa, a native

and citizen of the Dominican Republic, was deported from the United

States in 1997, after serving a sentence for his conviction of

conspiracy to distribute cocaine. Sometime thereafter, De La Rosa

reentered the United States illegally. In November 2003, De La Rosa

was arrested in Wake County, North Carolina, and charged with,

among other things, possession of cocaine and driving while

impaired. De La Rosa subsequently pled guilty to driving while

impaired. Following his conviction in state court, federal

immigration officials arrested De La Rosa and charged him with

illegal reentry. De La Rosa pled guilty to this offense.

The United States Probation Office prepared a Presentence

Investigation Report (PSR) for the district court. The PSR

correctly calculated De La Rosa’s base offense level as 8 and then

added 16 levels, because he had previously been convicted of a

felony drug trafficking offense, yielding a total offense level of
1

Congress authorized fast-track programs as part of the 2003

Prosecutorial Remedies and Other Tools to End the Exploitation of

Children Today (PROTECT) Act. See Pub. L. No. 108-21, §

401(m)(2)(B), 117 Stat. 650, 675 (2003). Specifically, the PROTECT

Act directs the United States Sentencing Commission to promulgate

a policy statement “authorizing a downward departure of not more

than 4 levels if the Government files a motion for such departure

pursuant to an early disposition program authorized by the Attorney

General and the United States Attorney.” Id. Accordingly, the

Sentencing Commission adopted U.S.S.G. § 5K3.1, which provides

that, “[u]pon a motion by the Government, the district court may

depart by up to 4 levels pursuant to an early disposition program

authorized by the Attorney General of the United States and the

United States Attorney for the district in which the court

resides.” Fast track sentencing programs are utilized by federal

prosecutors in states in close proximity to the Mexican border, who

are inundated with illegal reentry cases. See United States v.

Morales-Chaires, 430 F.3d 1124, 1127 (10th Cir. 2005). 

3

24. Deducting 3 levels for acceptance of responsibility, and

applying De La Rosa’s category III criminal history, the PSR

calculated an advisory Guidelines range of 46-57 months. 

Although De La Rosa did not object to the calculations in the

PSR, De La Rosa urged the district court to “depart” from the

advisory Guidelines range and issue a variance (non-Guidelines)

sentence. In so doing, De La Rosa argued that his Guidelines range

created unwarranted disparity among defendants, because Virginia is

a non-“fast track” district, where defendants receive higher

sentences than similarly situated defendants in “fast track”

districts.1 Emphasizing the need to provide just punishment for

the offense, to deter criminal conduct, and to protect the public

from a defendant who demonstrates a “propensity to commit [drug]
2

For instance, if the district court is concerned with whether

the advisory sentencing range is appropriate given a defendant’s

medical condition, see 18 U.S.C. § 3553(a)(2)(D), the court should

first look to U.S.S.G. § 5H1.4, which provides a mechanism for

departing downward on this basis. 

4

crimes,” J.A. 57, the district court rejected De La Rosa’s request

and sentenced him to 52 months in prison. De La Rosa timely

appealed. 

II.

In imposing a sentence after Booker, the district court must

engage in a two-step process. First, the court must correctly

calculate the sentencing range prescribed by the Guidelines.

United States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005).

Second, the court must consider whether this advisory sentencing

range “serves the factors set forth in § 3553(a) and, if not,

select a sentence that does serve those factors.” United States v.

Green, 436 F.3d 449, 456 (4th Cir. 2006). In applying the second

step, “the district court should first look to whether a departure

is appropriate based on the Guidelines Manual or relevant case

law.” United States v. Moreland, 437 F.3d 424, 433 (4th Cir.

2006). In other words, if the district court, in considering the

advisory Guideline range in conjunction with the § 3553(a) factors,

believes that an adjustment is warranted, the court should first

turn to specific departure provisions in the Guidelines to resolve

the issue.2 See id. If the resulting departure range does not
5

address the court’s concerns, or if there is no specific Guidelines

departure provision on point, the district court may then impose a

non-Guidelines or variance sentence. See id. 

De La Rosa contends that his sentence is “unreasonable, and,

when viewed in the totality of the circumstances, does not

accomplish the purposes of sentencing put forth in 18 U.S.C. §

3553(a).” Appellant’s Br. at 6. The Government responds that this

court lacks jurisdiction over De La Rosa’s claim that his sentence

was unreasonable because the district court refused to depart

downwardly under the Guidelines. Alternatively, the Government

argues that the sentence is reasonable. We will address the

jurisdictional and reasonableness issues in turn.

A.

The Government argues that because the district court

exercised its discretion in denying De La Rosa’s motion for a

downward departure, this court lacks jurisdiction to review the

sentence. As this court recently recognized, “traditional

departures--i.e., those made pursuant to specific guideline

provisions or case law remain an important part of sentencing even

after Booker.” United States v. Moreland, 437 F.3d 424, 433 (4th

Cir. 2006) (internal quotation marks omitted). Thus, post-Booker,

a district court may still grant traditional upward or downward

departures if it finds aggravating or mitigating factors of a kind
3In the example provided in note 2, supra, if the district

court determined that a defendant’s medical condition did not

warrant a Guidelines departure under U.S.S.G. § 5H1.4, we could not

review that aspect of the sentencing determination. 

6

or degree that the Sentencing Commission did not consider relevant

to the “heartland” of cases. United States v. Hampton, 441 F.3d

284, 287 n.1 (4th Cir. 2006). 

Where the district court is aware of its authority to depart

under a specific Guidelines provision, but exercises its discretion

not to depart, we lack jurisdiction to review that portion of the

sentencing decision.3 See United States v. Wood, 378 F.3d 342, 351

n.8 (4th Cir. 2004); United States v. Bayerle, 898 F.2d 28, 30-31

(4th Cir. 1990). However, because a Guidelines analysis is only

one facet of the post-Booker sentencing process, we are not

precluded from reviewing other aspects of the sentencing

determination. Thus, even where the district court exercises its

discretion not to depart under a traditional Guidelines provision,

we retain jurisdiction to review the overall reasonableness of the

sentence. 

In arguing that this court lacks jurisdiction to review the

sentence, the Government mischaracterizes De La Rosa’s motion.

After carefully reviewing the record, we conclude that De La Rosa

did not move for a traditional Guidelines departure. Instead, De

La Rosa argued that a careful consideration of the statutory

factors--particularly the need to avoid sentencing disparities--
4

Although the Government also briefly argues that we lack

jurisdiction to review the sentence for unreasonableness because it

falls within the advisory Guidelines range, that argument is

foreclosed by our recent decision in United States v. MontesPineda, __F.3d__, No. 05-4471, 2006 U.S. App. LEXIS 10178, at *2

(4th Cir. April 24, 2006). 

7

warranted a non-Guidelines sentence. Simply put, De La Rosa moved

for a variance, rather than a traditional departure. The district

court recognized as much when it inquired of De La Rosa’s counsel

as follows:

The Court: Counsel for De La Rosa, have I heard all

your arguments in furtherance--I interpret this as a

motion for a variance--have I heard all of your arguments

that you wish to make that are related to your position,

De La Rosa’s Memorandum and argued today?

Mr. Craven: Your honor, we would ask that the Court

take or accept the sentencing memorandum as a motion for

a variance.

J.A. 48-49. Accordingly, we are not precluded from reviewing any

aspect of the sentencing determination in this case.4

B.

Because the district court imposed a sentence within the

properly calculated advisory Guidelines range, the sentence is

entitled to a rebuttable presumption of reasonableness. Moreland,

437 F.3d at 433. A defendant can rebut a presumption by

demonstrating that the sentence is unreasonable in light of the §

3553(a) factors. United States v. Montes-Pineda, __F.3d__, No. 05-

4471, 2006 U.S. App. LEXIS 10178, at *2 (4th Cir. April 24, 2006).
8

After assessing this Guidelines sentence in light of the §

3553(a) factors, we conclude that it is reasonable. As we recently

observed, “[t]he re-entry of an ex-felon is a serious offense for

which Congress has seen fit to impose a statutory maximum sentence

of 20 years.” Id. (citing 8 U.S.C. § 1326(b)(2)). Further, as the

district court duly noted, De La Rosa has a substantial drugrelated criminal history and has demonstrated an unwillingness to

remain outside of the United States. In short, the sentence, which

is within the middle of the advisory Guidelines range, serves the

district court’s stated interest in providing just punishment for

the offense, providing adequate deterrence, and protecting the

public from future harm. See U.S.C. § 3553(a)(1). 

De La Rosa’s argument that his sentence creates unwarranted

sentencing disparity among defendants, see 18 U.S.C. § 3553(a)(6),

because Virginia is a non-“fast track” jurisdiction is foreclosed

by our decision in Montes-Pineda. In that case, we noted that

although sentencing disparities may exist between fast track and

non-fast track jurisdictions, a general disparity allegation is

insufficient to compel a non-guidelines sentence, especially where

the majority of § 3553(a) factors are best served by a Guidelines

sentence. Montes-Pineda, 2006 U.S. App. LEXIS 10178, at *3 (“It

would be especially inappropriate to impose such a general

requirement on the district courts in non-‘fast track’ districts,

given that Congress seems to have endorsed at least some degree of
9

disparity by expressly authorizing larger downward departures for

defendants in ‘fast track’ districts.”). 

In sum, we conclude that because the district court properly

treated the Guidelines as advisory, and properly considered the

Guidelines range in conjunction with the relevant statutory

factors, the sentence is reasonable. 

III.

For the foregoing reasons, we affirm the sentence imposed by

the district court. We dispense with oral argument because the

facts and legal contentions are adequately presented in the

materials before the court and argument would not aid in the

decisional process.

AFFIRMED