United States v. Agustin Rivera-Santana
2012 U.S. App. LEXIS 1935
| 4th Cir. | 2012Background
- Rivera-Santana, a Mexican-born lawful permanent resident, was convicted in Virginia of aggravated sexual assault and related offenses, with a projected release in 2012.
- He previously reentered the U.S. illegally after deportation for a California voluntary manslaughter conviction (aggravated felony under §1326(b)(2)).
- In 2010 he pled guilty to illegal reentry after prior removal for an aggravated felony, with a statutory maximum of 240 months.
- The presentence report (PSR) recommended an offense level of 21 and criminal history category IV; the base level reflected an enhancement for a prior violent crime.
- The district court upwardly departed twice: first to a higher criminal history category VI, then to a higher offense level, and finally imposed an upward variance to the statutory maximum of 240 months.
- Rivera-Santana appealed, challenging the two departures and the variance as procedurally unreasonable and contending the sentence is substantively unreasonable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the upward departures and variance were procedurally proper | Rivera-Santana argues the court over-relied on 2L1.2 and improperly counted history and offense considerations. | Rivera-Santana contends double counting or improper consideration of prior arrests and failure to use incremental reasoning invalidates departures/variance. | No reversible procedural error; court properly applied departures and variance under 3553(a). |
| Whether the district court erred by relying on Rybicki and improper scoring of arrests | Rivera-Santana claims the court relied on outdated law and scored dissimilar arrests to increase points. | Rivera-Santana asserts improper reliance on Rybicki and mis-scoring; any error was harmless. | Any error was harmless; the sentence stands. |
| Whether the court failed to apply the incremental approach to departures | Rivera-Santana contends intervening levels were not properly considered before upward departures. | Court reasoned through the hierarchy and explained rationale for departures without mechanical enumeration. | No reversible error; even if not explicit, reasoning sufficed and any error was harmless. |
| Whether the court adequately considered mitigating factors and avoided unwarranted disparities in applying 3553(a) | Rivera-Santana argues mitigating factors (age, health) and disparities were not weighed. | Court appropriately weighed factors, concluding aggravating factors outweighed mitigation and justified disparity. | Court's balance of 3553(a) factors was sufficient. |
| Whether the 240-month sentence is substantively reasonable | Rivera-Santana claims 240 months is effectively a life sentence incompatible with his age/health. | Deferential review of variance supports reasonableness given danger and recidivism. | Sentence substantively reasonable and affirmed. |
Key Cases Cited
- Gall v. United States, 552 U.S. 38 (U.S. 2007) (reasonableness review requires first addressing procedural errors)
- Kimbrough v. United States, 552 U.S. 85 (U.S. 2007) (policy-based departures permissible under Guidelines)
- Abu Ali v. United States, 528 F.3d 210 (4th Cir. 2008) (comparative sentence considerations in §3553(a) context)
- Dalton v. United States, 477 F.3d 195 (4th Cir. 2007) (incremental departure analysis guidance)
- Savillon-Matute v. United States, 636 F.3d 119 (4th Cir. 2011) (harmless-error principle in sentencing when variance remains)
- Evans v. United States, 526 F.3d 155 (4th Cir. 2008) (harmless error concept in § 3553(a) context)
- Montes-Pineda v. United States, 445 F.3d 375 (4th Cir. 2006) (support for appellate review of outside-range sentences)