UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 07-5007

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

 v. 

JUAN ESPINOSA-MARTINEZ, 

 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. (7:07-cr-00021-FL) 

Submitted: March 26, 2009 Decided: April 22, 2009 

Before WILKINSON, MOTZ, and KING, 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Affirmed by unpublished per curiam opinion.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, Banumathi Rangarajan, Assistant United States 

Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

 Juan Espinosa-Martinez pled guilty without a plea 

agreement to illegal reentry by a deported aggravated felon, in 

violation of 8 U.S.C. § 1326(a)(2), (b)(2) (2006). He now 

appeals his 118-month sentence, contending that it is 

unreasonable. We affirm. 

I 

 Espinosa-Martinez’s base offense level was 8. See

U.S. Sentencing Guidelines Manual § 2L1.2 (2006). Sixteen 

levels were added because he previously was deported following a 

conviction for a felony drug trafficking offense for which he 

was sentenced to more than thirteen months in prison. See USSG 

§ 2L1.2(b)(1)(A)(i). He received a three-level reduction for 

acceptance of responsibility. See USSG § 3E1.1(b). His total 

offense level therefore was 21. 

 Espinosa-Martinez’s prior convictions resulted in 

thirty-five criminal history points. Of these, only twenty-one 

points were counted for the purpose of establishing his criminal 

history category because USSG § 4A1.1(c) precluded the counting 

of all points assigned to sentences of short duration. Two 

points were added because he was on probation at the time he 

committed the instant offense. See USSG § 4A1.1(d). One point 

was added because he committed the subject offense less than two 

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years following his release from custody. See USSG § 4A1.1(e). 

He had twenty-four total criminal history points, placing him in 

criminal history category VI (thirteen or more criminal history 

points). 

 His advisory Guidelines range was 77-96 months in 

prison. The United States moved for an upward departure on the 

ground that Espinosa-Martinez’s criminal history category 

inadequately represented his criminal history and the likelihood 

that he would commit other crimes. The district court agreed 

with the United States and granted the motion. Using the 

incremental approach, see United States v. Dalton, 477 F.3d 195, 

199 (4th Cir. 2007), the court departed upward to offense level 

24, for an advisory Guidelines range of 100-125 months. 

 After hearing from counsel and Espinosa-Martinez and 

considering the 18 U.S.C. § 3553(a) (2006) factors, the court 

sentenced him to 118 months in prison. In imposing sentence, the 

court took note of his twenty-five year criminal history, which 

included two previous federal convictions and two deportations, 

as well as the number of criminal history points, both counted 

and uncounted. The court expressed the need to protect the 

public from further criminal activity. 

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II 

 We review a sentence for reasonableness, using the 

deferential abuse of discretion standard. See Gall v. United 

States, 128 S. Ct. 586, 597 (2007). We first consider whether 

the district court committed any significant procedural errors. 

United States v. Evans, 526 F.3d 155, 162 (4th Cir.), cert. 

denied, 129 S. Ct. 476 (2008). If not, we then consider 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.” Gall, 128 S. Ct. at 

597. While we may presume a sentence within the Guidelines 

range to be reasonable, we may not presume that a sentence 

outside that range is unreasonable. Id. Moreover, we must give 

due deference to the district court’s decision that the 

§ 3553(a) factors justify imposing a variant sentence and its 

determination regarding the extent of any variance. Id. 

 The district court may depart upward from an advisory 

Guidelines range “[i]f reliable information indicates that the 

defendant’s criminal history category substantially underrepresents the seriousness of the defendant’s criminal history 

or the likelihood that the defendant will commit other crimes. 

. . . ” USSG § 4A1.3(a). In deciding whether a departure under 

§ 4A1.3 is warranted, the sentencing court may consider 

uncounted prior sentences, USSG § 4A1.3(a)(2), as well as parole 

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and probation violations, United States v. Lawrence, 349 F.3d 

724, 728 (4th Cir. 2003). 

 We conclude that Espinosa-Martinez’s sentence is 

reasonable. In this regard, we note that the district court 

properly calculated the Guidelines range, treated the Guidelines 

as advisory, considered the applicable § 3553(a) factors, and 

adequately explained its reasons for the fact and extent of the 

departure. See Gall, 128 S. Ct. at 597; United States v. 

Pauley, 511 F.3d 468, 473 (4th Cir. 2007). 

III 

 We therefore affirm.* 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 the 

decisional process. 

AFFIRMED

 *

 To the extent that Espinosa-Martinez contends that his 

criminal history was impermissibly double-counted, we reject 

this claim. See United States v. Torres-Echavarria, 129 F.3d 

692, 698-99 (2d Cir. 1997); United States v. Crawford, 18 F.3d 

1173, 1179 (4th Cir. 1994).