UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 08-5151

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

SEVERINO LOYA-SANDOVAL, a/k/a Seferino Sandoval-Loya, a/k/a 

Sevarino Loya,

Defendant - Appellant.

Appeal from the United States District Court for the Middle 

District of North Carolina, at Greensboro. N. Carlton Tilley, 

Jr., Senior District Judge. (1:08-cr-00071-NCT-1)

Submitted: May 28, 2010 Decided: June 18, 2010

Before WILKINSON, GREGORY, and DAVIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Benjamin Porter, MORROW ALEXANDER PORTER & WHITLEY, PLLC, 

Winston-Salem, North Carolina, for Appellant. Anna Mills 

Wagoner, United States Attorney, Randall S. Galyon, Assistant 

United States Attorney, Aindrea Alderson, Third-Year Law 

Student, Winston-Salem, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Severino Loya-Sandoval pled guilty to illegal reentry 

of a deported alien after conviction of an aggravated felony, 8 

U.S.C. § 1326(a), (b)(2) (2006), and was sentenced to a term of 

eighty-six months imprisonment. Loya-Sandoval appeals his 

sentence, arguing that the district court abused its discretion 

by departing from criminal history category IV to category VI 

under U.S. Sentencing Guidelines Manual § 4A1.3(a), p.s. (2008), 

and also in departing upward by two offense levels on the ground 

that Loya-Sandoval reentered for a criminal purpose, USSG 

§ 5K2.9, p.s. We affirm.

Loya-Sandoval was convicted of heroin trafficking in 

1992, sentenced to 180 days imprisonment, and deported. He was 

deported again in 1997 after a conviction for felony possession 

of cocaine. Loya-Sandoval was arrested in October 2006 during a 

state drug investigation in North Carolina. The charge against 

him was dismissed when his co-defendant, who had initially 

implicated him, recanted and refused to testify against him. 

After Loya-Sandoval’s guilty plea to unlawful reentry, his 

recommended advisory guideline range was 37-46 months. At his 

sentencing hearing, the government presented evidence of his 

involvement in cocaine trafficking in October 2006. The 

district court departed upward, finding first that LoyaSandoval’s criminal history score did not adequately reflect his 
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past criminal conduct. The court determined the extent of the

departure by first noting that Loya-Sandoval did not receive any 

criminal history points for his 1992 sentence for heroin 

trafficking.*

The court also determined that there was compelling 

evidence that Loya-Sandoval was involved in a drug offense when 

he was arrested in October 2006. The court departed upward by 

four offense levels pursuant to USSG § 5K2.0 to account for the 

fact that Loya-Sandoval had reentered the country “for the 

purpose of facilitating drug activity.” The new guideline range 

that resulted from the departures was 77-96 months. 

 The court also assessed one hypothetical criminal 

history point for each of Loya-Sandoval’s two prior illegal 

reentries, for which he had not been prosecuted. An additional 

four points would have given Loya-Sandoval a total of 13 

criminal history points and placed him in category VI. The 

court therefore departed upward to category VI pursuant to 

§ 4A1.3. The court found that category V was inadequate. 

A sentence is reviewed for reasonableness under an 

abuse of discretion standard. Gall v. United States, 552 U.S. 

38, 51 (2007). This review requires consideration of both the 

procedural and substantive reasonableness of a sentence. Id.; 

 * The 180-day sentence was outside the applicable time 

period. USSG § 4A1.2(e)(3). Otherwise, two points would have 

been awarded. USSG § 4A1.1(b).
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see also United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 

2010). 

Loya-Sandoval argues that the district court’s sealed 

statement of reasons states erroneously that he had two prior 

uncounted drug convictions. He is correct that only one of his 

prior drug sentences was uncounted. However, the court’s 

written statement of reasons does not accurately reflect its 

basis for the criminal history departure, which consisted of one 

old, uncounted prior sentence for serious criminal conduct, see

USSG § 4A1.2, cmt. n.8 (court “may consider [such] information 

in determining whether an upward departure is warranted under 

§ 4A1.3”), and two instances of “deportation violation” where 

Loya-Sandoval unlawfully reentered the country after he was 

convicted of a crime and deported. Loya-Sandoval does not 

dispute that “prior similar adult conduct not resulting in a 

criminal conviction” is an approved basis for departure. See

USSG § 4A1.3(a)(2)(E). When there is a conflict between the 

orally pronounced sentence and the written judgment, the oral 

sentence controls. United States v. Osborne, 345 F.3d 281, 283 

n.1 (4th Cir. 2003) (citing United States v. Morse, 344 F.2d 27, 

29 n.1 (4th Cir. 1965)). In this case, the court’s valid orally 

stated reason for the departure also controls. 

Loya-Sandoval further contends that his 1992 drug 

sentence should not have been considered because it was the 
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basis for the 12-level enhancement he received under 

§ 2L1.2(b)(1)(B), and thus had already been taken into account 

in the determination of his guideline range. The 1992 sentence 

did not contribute to Loya-Sandoval’s criminal history score, 

however. Therefore, the district court did not err in deciding 

that category IV did not adequately reflect the seriousness of 

his criminal history. 

Loya-Sandoval maintains that the evidence presented by 

the government at sentencing did not establish a connection 

between his illegal reentry and his involvement in the drug 

activity for which he was arrested in October 2006. However, 

the district court noted that, each time Loya-Sandoval returned 

after being deported, he was apprehended because he committed a 

crime, usually involving drugs. Although Loya-Sandoval did not 

receive a conviction for a drug offense after each of his 

unlawful reentries, we are satisfied that the district court’s 

description of Loya-Sandoval’s pattern of deportation, illegal 

reentry, and continued involvement with drug activity is 

adequately supported by the record. Moreover, the government’s 

evidence of Loya-Sandoval’s involvement with drug trafficking in 

October 2006 was compelling. 

We conclude that Loya-Sandoval has not shown that the 

district court’s decision to depart lacked a sufficient factual 

basis or was based on a misapplication of § 4A1.3. We further 
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conclude that the sentence is otherwise reasonable. We 

therefore 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 the decisional process.

AFFIRMED