United States v. Diosdado-Star
2011 U.S. App. LEXIS 1397
| 4th Cir. | 2011Background
- Diosdado-Star, Mexican citizen, entered the U.S. unlawfully in 1991 and was deported in 2002 but reentered illegally the same month.
- ICE investigated a Border Patrol Agent misconduct and discovered Diosdado-Star used aliases and impersonated a BPA to defraud illegal aliens.
- Agents found on his laptop photos in BPA uniform and documents belonging to five victims; cash, and fraudulent permanent resident cards and Social Security cards were recovered.
- GARAGE search revealed information relating to 51 additional victims; he deposited about $177,000 in banks and purchased vehicles and furnishings without employment evidence.
- Diosdado-Star pled guilty to (1) being found in the U.S. after deportation (max 2 years) and (2) possessing a counterfeit resident alien card (max 10 years); PSR calculated a guideline range of 4–10 months but noted potential departures/variances.
- District court sentenced him to 84 months total (24 months for Count 1, 60 months for Count 2) after a non-Guidelines variance based on § 3553(a) factors.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Procedural validity of a variance vs. departure | Diosdado-Star argues court should have addressed departures first. | Star relies on Moreland that departures must be considered before variances. | Variance upheld; Gall/Rita overruled Moreland guidance. |
| Substantive reasonableness of the variance | Star contends the variance lacks compelling justification. | Court gave substantial § 3553(a) justification and deterrence needs. | Sentence outside guidelines but reasonable under § 3553(a) and abuse-of-discretion standard. |
Key Cases Cited
- Rita v. United States, 551 U.S. 338 (2007) (presumption of reasonableness for within-Guidelines sentences; deference to district court’s reasoning; flexibility in applying § 3553(a) considerations)
- Gall v. United States, 552 U.S. 38 (2007) (requires correct Guidelines calculation first; permits outside-Guidelines sentence with compelling justification; emphasizes totality of circumstances)
- Evans v. United States, 526 F.3d 155 (4th Cir. 2008) (upheld non-departure-based deviation with independent rationales; deviation review for reasonableness)
- Moreland v. United States, 437 F.3d 424 (4th Cir. 2006) (previous guidance that departures should be considered before variances (overruled by Rita/Gall))