UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-4419

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

PEDRO ANTONIO ESCOBAR−MARROQUIN,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of Virgina, at Richmond. John A. Gibney, Jr., District 

Judge. (3:11-cr-00305-JAG-1)

Argued: March 22, 2013 Decided: May 8, 2013

Before TRAXLER, Chief Judge, and MOTZ and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Caroline Swift Platt, OFFICE OF THE FEDERAL PUBLIC 

DEFENDER, Alexandria, Virginia, for Appellant. Stephen David 

Schiller, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, 

Virginia, for Appellee. ON BRIEF: Michael S. Nachmanoff, 

Federal Public Defender, Alexandria, Virginia, Mary E. Maguire, 

Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC 

DEFENDER, Richmond, Virginia, for Appellant. Neil H. MacBride, 

United States Attorney, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Pedro Antonio Escobar-Marroquin pled guilty to illegal 

reentry and received a 60-month term of imprisonment, which 

represented a 14-month variance above the top end of the 

applicable sentencing range. He now challenges the substantive 

reasonableness of his sentence. We affirm. 

I.

The defendant is a Salvadoran citizen who, according to the 

parties’ agreed upon Statement of Facts, entered the United 

States illegally for the first time in 1987.*

 Some time around 

1988, he returned to El Salvador to marry and subsequently 

reentered the United States. In 2009, the defendant was 

convicted in state court of possession with intent to distribute 

cocaine. He served approximately six months of a five-year 

sentence and was removed in October 2009. The defendant 

reentered the United States in January or February 2010, was 

arrested in August 2010 for possession with intent to distribute 

cocaine, and was convicted in state court and sentenced to seven 

years’ imprisonment. While serving that sentence, the defendant 

was federally indicted for illegal reentry following an 

 * We note that there is also evidence in the record that 

the defendant’s first illegal entry into the United States may 

have been in 1983. The exact date on which the defendant 

initially entered the United States is not relevant to our 

disposition on appeal.
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aggravated felony, in violation of 8 U.S.C. § 1326. He 

subsequently pled guilty to the illegal reentry charge.

According to the presentence report (“PSR”), the 

defendant’s offense level of 17 and criminal history category of 

IV resulted in an advisory guideline range of 37 to 46 months’ 

imprisonment. At sentencing, the defendant sought a downward 

variance for three reasons. He first emphasized that the MS-13 

gang in El Salvador was demanding payments for the protection of 

his family; that he worked in the United States to satisfy these 

extortion demands and to protect his wife, children, and family 

members in El Salvador; and that the MS-13 gang had already 

killed his uncle and father because he was unable to pay them 

enough money. Second, he noted that he rehabilitated himself 

while in prison by completing a Bible study course and getting 

baptized and by graduating from a drug treatment program. And 

finally, he argued that his 2009 state drug conviction was 

unfairly counted three separate times in the calculation of his 

offense level under the guidelines. 

The government sought a 92-month sentence, arguing that 

the defendant reentered the United States shortly after he was 

removed and began selling drugs again. The district court 

sentenced the defendant to 60 months’ imprisonment, a 14-month 

variance above the guidelines range. 
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II.

The defendant challenges the reasonableness of his 

sentence, which we review under “a deferential abuse-ofdiscretion standard.” United States v. Rivera-Santana, 668 F.3d 

95, 100 (4th Cir. 2012) (internal quotation marks omitted). We 

normally begin our evaluation by considering the procedural 

reasonableness of the sentence, see United States v. Morace, 594 

F.3d 340, 345 (4th Cir. 2010), but the defendant does not 

challenge the procedural reasonableness of his sentence. 

Rather, the defendant’s sole contention on appeal is that his 

sentence was substantively unreasonable.

With regard to the substantive reasonableness of the 

defendant’s sentence, 

we must determine . . . whether the District Judge 

abused his discretion in determining that the [18 

U.S.C. §] 3553(a) factors supported the sentence and 

justified a substantial deviation from the Guidelines 

range. We also must take into account the totality of 

the circumstances, including the extent of any 

variance from the Guidelines range. If the sentence 

is outside the Guidelines range, the court may not 

apply a presumption of unreasonableness. It may 

consider the extent of the deviation, but must give 

due deference to the district court’s decision that 

the [18 U.S.C. §] 3553(a) factors, on a whole, justify 

the extent of the variance. The fact that the 

appellate court might reasonably have concluded that a 

different sentence was appropriate is insufficient to 

justify reversal of the district court.
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United States v. Diosdado-Star, 630 F.3d 359, 366 (4th Cir. 

2011) (alterations, citations, and internal quotation marks 

omitted). 

A.

The defendant’s first argument is that the district court 

abused its discretion by placing too much weight on his criminal 

history. Other than the illegal reentry underlying this case, 

the defendant’s criminal history consists of a conviction for 

“Profanely Curse/Public Intoxication,” a traffic offense, and 

two state convictions for possession with intent to distribute 

cocaine. The defendant emphasizes that each drug offense 

involved less than one gram, and he argues that these offenses 

were fully taken into account in calculating his guideline 

range. 

The district court did rely on the defendant’s criminal 

history in imposing an above-guideline sentence, but the court 

relied on other factors as well. Consistent with its obligation 

to impose a sentence in accordance with the factors set forth at 

18 U.S.C. § 3553(a), the court noted the defendant’s 

circumstances and lack of respect for the law by emphasizing 

that he returned to the United States shortly after being 

removed in order to sell cocaine. The court also mentioned its 

view that the defendant’s “histrionic[]” conduct before the 

court, J.A. 120, in which he begged for mercy from his hands and 
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knees, was an attempt to manipulate the court. And finally, the 

court discussed the seriousness of the offense and the need to 

provide deterrence given that the defendant had twice been 

caught selling cocaine in the United States and that drug 

dealing is not a victimless crime. We are satisfied that the 

court’s consideration and application of the § 3553(a) factors 

justified the variance in this case. Accordingly, the court did 

not abuse its discretion by placing too much weight on the 

defendant’s criminal history.

B.

The defendant also contends that his sentence was 

substantively unreasonable because the district court relied on 

several factually inaccurate assertions made by the government. 

In its sentencing memorandum, the government stated that the 

defendant “began selling heroin and then later cocaine.” J.A. 

46. But there is no evidence in the record that the defendant 

ever sold heroin. Similarly, the government asserted that the 

defendant had “12 years of schooling.” J.A. 54. But he only 

underwent four years of education. 

At oral argument before us, the attorney for the government 

apologized profusely for these factual inaccuracies, explaining 

that he used a brief from an unrelated case as the basis for his 

sentencing memorandum in this case and, because he was 

overworked at the time, he simply did a poor job of editing. We 
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appreciate the government’s candor and accept that the inclusion 

of these statements was an oversight. Nonetheless, counsel for 

the government is an officer of the court who is expected to be 

truthful and accurate in all representations made to the court. 

We trust that the government will take steps to ensure that 

problems of this nature will not recur. 

While we do not condone the government’s carelessness, its 

misstatements would be prejudicial only insofar as the district 

court relied on them in imposing the sentence. The defendant 

contends that the “upward variance sentence” was imposed 

“perhaps in partial reliance on one or more of these mistaken 

assertions.” App. Brief at 8 n.2. We disagree. Having 

reviewed the sentencing transcript and the PSR which the court 

adopted, we are satisfied that the sentence imposed was not 

affected by the government’s misstatements. 

III.

For the foregoing reasons, we affirm.

AFFIRMED