UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-4849

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

LUIS MANUEL VASQUEZ-VEGA,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

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

District Judge. (5:13-cr-00062-FL-1)

Submitted: May 30, 2014 Decided: June 11, 2014

Before KEENAN, WYNN, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, Eric J. Brignac, 

Assistant Federal Public Defender, Raleigh, North Carolina, for 

Appellant. Thomas G. Walker, United States Attorney, Jennifer 

P. May-Parker, Kristine L. Fritz, Assistant United States 

Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Luis Manuel Vasquez-Vega appeals the thirty-month 

sentence imposed following his guilty plea to illegal reentry by 

a felon, in violation of 8 U.S.C. § 1326(a), (b)(1) (2012). On 

appeal, Vasquez-Vega challenges the court’s decision to depart 

upward under U.S. Sentencing Guidelines Manual (“USSG”) § 4A1.3, 

p.s. (2012), after concluding that Vasquez-Vega’s criminal 

history category underrepresented the seriousness of his 

criminal history and his likelihood of recidivism. For the 

reasons that follow, we affirm.

We review a sentence for reasonableness, applying a 

“deferential abuse-of-discretion standard.” Gall v. United 

States, 552 U.S. 38, 52 (2007). We first review the sentence 

for “significant procedural error,” including improper 

calculation of the Guidelines range, insufficient consideration 

of the 18 U.S.C. § 3553(a) (2012) factors, reliance on clearly 

erroneous facts, and inadequate explanation of the sentence 

imposed. Id. at 51; see United States v. Lynn, 592 F.3d 572, 

575 (4th Cir. 2010). If we find the sentence procedurally 

reasonable, we also must examine its substantive reasonableness 

under the totality of the circumstances. Lynn, 592 F.3d at 578. 

The sentence imposed must be “sufficient, but not greater than 

necessary, to comply with the purposes [of sentencing].” 18 

U.S.C. § 3553(a). 
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In reviewing a sentencing court’s departure from the 

Guidelines range, we 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. McNeill, 598 F.3d 

161, 166 (4th Cir. 2010) (internal quotation marks omitted). 

“[A]n appellate court must defer to the trial court and can 

reverse a sentence only if it is unreasonable, even if the 

sentence would not have been the choice of the appellate court.” 

United States v. Evans, 526 F.3d 155, 160 (4th Cir. 2008) 

(emphasis omitted). Nevertheless, “[t]he farther the court 

diverges from the advisory guideline range,” the more we must 

“carefully scrutinize the reasoning offered by the district 

court in support of the sentence.” United States v. Hampton, 

441 F.3d 284, 288 (4th Cir. 2006) (internal quotation marks 

omitted).

A sentencing court may depart upward “[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)(1), p.s. 

In making this determination, the court may rely on such 

information as prior sentences not used in the defendant’s 

criminal history calculation and “[p]rior similar adult criminal 
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conduct not resulting in a criminal conviction.” USSG 

§ 4A1.3(a)(2)(A), (E), p.s. In determining the extent of the 

departure, the sentencing court is to apply an incremental 

approach to the Guidelines, moving to successively higher 

criminal history categories after finding the prior category 

inadequate, until it reaches the criminal history category that 

most closely resembles the defendant’s criminal history or 

likelihood of recidivism. See USSG § 4A1.3(a)(4)(B), p.s.; 

United States v. Dalton, 477 F.3d 195, 199 (4th Cir. 2007). 

We find no abuse of discretion in either the fact or 

extent of the departure imposed by the court. Vasquez-Vega had 

five prior convictions for illegal entry, only three of which 

were assigned criminal history points. The presentence report 

(“PSR”) also described Vasquez-Vega’s extensive history of 

illegal reentry, reaching back nearly twenty years. He admitted 

crossing the border illegally on more than seventy occasions 

between 1997 and 2010; thirty crossings were documented through 

contact with Immigration and Customs Enforcement (“ICE”) between 

1996 and 1999. Because Vasquez-Vega did not challenge this 

information, the court was entitled to rely on it. See United 

States v. Randall, 171 F.3d 195, 210-11 (4th Cir. 1999) (noting 

defendant has burden to establish facts in PSR are incorrect). 
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The court also concluded that Vasquez-Vega’s criminal 

history score did not reflect his work as a coyote.* 

Vasquez-Vega argues that the record provides insufficient 

evidence to support this finding. However, we conclude the 

district court did not clearly err in finding that the sheer 

number of otherwise unexplained crossings to which Vasquez-Vega 

admitted, coupled with several recent illegal reentry 

convictions, bolstered the testimony of an ICE agent on the 

matter and provided sufficient evidence to support the court’s 

finding. 

Based on Vasquez-Vega’s pattern of frequent illegal 

entry, which was undeterred by five custodial sentences between 

1999 and 2011, and the court’s finding regarding the purpose of 

his illegal entry, we conclude the court was amply justified in 

finding Vasquez-Vega’s criminal history score of IV inadequate. 

Contrary to Vasquez-Vega’s assertions on appeal, neither the 

fact that his prior sentences were lenient, nor the fact that

his prior criminal conduct comprised nonviolent immigration 

offenses, required the court to impose a within-Guidelines 

sentence. See United States v. Zelaya-Rosales, 707 F.3d 542, 

546 (5th Cir. 2013); United States v. Mejida-Perez, 635 F.3d 

 * “‘[C]oyote’ is the term for those who facilitate unlawful 

entry from Mexico.” United States v. Rodriguez, 587 F.3d 573, 

575 n.1 (2d Cir. 2009).
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351, 353 (8th Cir. 2011). Thus, we conclude the court did not 

abuse its discretion in finding a USSG § 4A1.3 departure 

warranted.

Turning to the length of the departure, we find the 

sentence both procedurally and substantively reasonable. The 

court followed the necessary procedures in imposing the 

departure, providing specific reasons for departing and properly 

applying an incremental approach when determining the length of 

the sentence. See Dalton, 477 F.3d at 199. The district court

also appropriately applied the § 3553(a) factors when selecting 

the length of the sentence. The court properly concluded that

Vasquez-Vega’s flagrant recidivism established a significant 

need to promote respect for the law, to deter further criminal 

conduct, and to protect the public from further crime. See 18 

U.S.C. § 3553(a)(2)(A), (B), (C). The court also specifically 

noted that it had considered Vasquez-Vega’s early exposure to 

illegal entry and relied on this fact when determining the 

extent of the departure. Affording the court’s sentencing 

determination the requisite deference, see Gall, 552 U.S. at 51, 

we conclude its decision to depart upward by nine months was not

substantively unreasonable. 

Accordingly, we affirm the district court’s judgment. 

We dispense with oral argument because the facts and legal 
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contentions are adequately presented in the materials before 

this court and argument would not aid the decisional process.

AFFIRMED