United States of America v. Roberto Diosdado-Star, a/k/a Robert Guerrera, a/k/a S. P. Guitierez-Llanas, a/k/a…

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERTO DIOSDADO-STAR, a/k/a
Robert Guerrera, a/k/a S. P.
Guitierez-Llanas, a/k/a Steve No. 09-4723 
Collins, a/k/a Robert Star, a/k/a
Jorge Villereal-Julio, a/k/a Esteban
Gonzalez-Rivera, a/k/a Jorge
Jorge-Villareal, a/k/a Roberto
Herrera,
Defendant-Appellant. 
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Fox, Senior District Judge.
(5:08-cr-00292-F-1)
Argued: December 10, 2010
Decided: January 24, 2011
Before AGEE and DAVIS, Circuit Judges, and
David A. FABER, Senior United States District Judge for
the Southern District of West Virginia,
sitting by designation.
Affirmed by published opinion. Judge Agee wrote the opin-
ion, in which Judge Davis and Senior Judge Faber concurred.

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COUNSEL
ARGUED: Stephen Clayton Gordon, OFFICE OF THE FED-
ERAL PUBLIC DEFENDER, Raleigh, North Carolina, for
Appellant. Ethan A. Ontjes, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appel-
lee. ON BRIEF: Thomas P. McNamara, Federal Public
Defender, Raleigh, North Carolina, for Appellant. George E.
B. Holding, United States Attorney, Anne M. Hayes, Assis-
tant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appel-
lee.
OPINION
AGEE, Circuit Judge:
Roberto Diosdado-Star ("Diosdado-Star") pled guilty to
one count of being found in the United States after having
been excluded, deported, and removed from the United States,
in violation of 8 U.S.C. § 1326(a), and one count of possess-
ing a counterfeit United States Resident Alien card, in viola-
tion of 18 U.S.C. § 1546(a). Diosdado-Star appeals his
sentence of 84 months’ imprisonment. For the following rea-
sons, we affirm the district court’s judgment.
I.
Diosdado-Star, a citizen of Mexico, unlawfully entered the
United States in 1991. In 2002, he was arrested in Texas for
an immigration violation and deported to Mexico, but ille-
gally returned without detection to North Carolina during the
same month.
In 2006, Immigration and Customs Enforcement ("ICE")
launched an internal investigation of a Border Patrol Agent
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("BPA") named Roberto Herrera, who was suspected of mis-
conduct. During the course of the investigation ICE agents
discovered that Diosdado-Star had been using the pseudonym
"Roberto Herrera," along with several other aliases, and
fraudulently representing himself to be a BPA. Diosdado-Star
was suspected to have done so "in an effort to defraud unsus-
pecting Hispanic aliens into believing that either they or their
family members could obtain legitimate immigration docu-
ments for large amounts of U.S. currency." (J.A. 138).
Diosdado-Star never supplied any such documents to the vic-
tims, although he took substantial payments from them as
well as their "Social Security cards, birth certificates, driver’s
licenses, passports, Permanent Resident Alien cards, marriage
licenses, tax returns, pay stubs, and utility bills." (J.A. 138).
As a result of this investigation, ICE agents arrested
Diosdado-Star at his residence in Raleigh in 2008. During a
search of his home, agents discovered photos on a laptop
computer of Diosdado-Star wearing a BPA uniform, $3,000
in cash, and "Social Security cards, Mexican birth certificates,
Texas driver’s licenses/identification cards, Mexican pass-
ports, Permanent Resident Alien cards, Mexican marriage
licenses, tax returns, pay stubs, and utility bills" belonging to
five different victims. (J.A. 139). During a search of
Diosdado-Star’s vehicle, agents discovered a fraudulent Per-
manent Resident Alien card and a fraudulent Social Security
card. During a search of Diosdado-Star’s garage, agents found
identification information relating to "an additional 51 vic-
tims," and discovered that Diosdado-Star had "deposited
approximately $177,000 in U.S. currency into his various
bank accounts between February 2006 and September 2008"
and "spent large amounts of money on vehicles, car accesso-
ries, and large appliances for his home," (J.A. 139), even
though he had no record of employment. Diosdado-Star "ad-
mitted [to ICE agents] to being a citizen of Mexico who was
previously deported . . . [and] admitted to illegally reentering
the United States . . . and to posing as a BPA to defraud ille-
gal aliens." (J.A. 139).
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Diosdado-Star was charged with and pled guilty to (1)
being found in the United States after being deported, for
which the statutory maximum term of imprisonment is two
years, and (2) possessing a counterfeit resident alien card, for
which the statutory maximum term of imprisonment is ten
years. The Presentence Investigation Report ("PSR") calcu-
lated his Guidelines range for the two charges to be a total of
four to ten months’ imprisonment, but noted that a departure
may be warranted under either U.S.S.G. § 5K2.21, Dismissed
and Uncharged Conduct, or U.S.S.G. § 4A1.3, Inadequacy of
Criminal History Category, due to his "additional criminal
conduct related to impersonating a federal law enforcement
officer to defraud numerous illegal immigrants." (J.A. 147).
At the sentencing hearing, the district court decided to
"vary in the sentencing," (J.A. 113), based on the following
factors: Diosdado-Star (1) had a "criminal record consist[ing]
of four prior convictions to obtain property by false pre-
tenses," (J.A. 112); (2) "calculated to deceive . . . people . . .
[who] were very vulnerable because they did not have the
right to come to the United States," (J.A. 112); (3) "ha[d]
acquired substantial amounts of money," "purchased two
vehicles and an extensive array of home furnishings," "had
cash in the amount of $3,900 seized from him during the first
search of the residence although he has no record of employ-
ment," and "$25,000 was turned over by his family after his
arrest," (J.A. 112-13); (4) "was on probation when he commit-
ted the instant offense"; and (5) "has a devoted family [in the
United States], which gives him a strong motivation to recidi-
vate and re-enter the United States." (J.A. 113).
On the basis of these factors as well as "the advisory guide-
lines and those in 18 U.S.C. § 3553(a)," the district court sen-
tenced Diosdado-Star to 24 months’ imprisonment for Count
1 and 60 months’ imprisonment for Count 2, to run consecu-
tively for a total of 84 months’ imprisonment. (J.A. 113).
Diosdado-Star timely filed an appeal from the judgment of the
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district court and this Court has jurisdiction pursuant to 28
U.S.C. § 1291 and 18 U.S.C. § 3742.
II.
On appeal, Diosdado-Star argues that his sentence is both
procedurally and substantively unreasonable. He contends
that the district court procedurally erred by failing to "first
address[ ] a departure before imposing a purportedly non-
guidelines sentence." (Appellant’s Br. 17). In support of this
contention, he relies on language in this Court’s decision in
United States v. Moreland, 437 F.3d 424 (4th Cir. 2006), for
the proposition that "when selecting a sentence outside of the
correctly-calculated guideline range, the district court should
first look to whether a departure is appropriate based on the
Guidelines Manual or relevant case law." (Appellant’s Br. 15)
(quotations omitted). Diosdado-Star asserts Moreland requires
"that a court first look to the guidelines’ departure provisions
before varying," (Appellant’s Br. 16), and that this require-
ment was not overruled by the Supreme Court’s subsequent
decision in Gall v. United States, 552 U.S. 38 (2007).
Diosdado-Star further contends that he was prejudiced by the
district court’s decision to impose a variance rather than a
departure because he "had no opportunity to argue against
being placed in a higher criminal history category." (Appel-
lant’s Br. 19).
Diosdado-Star also asserts that his sentence is substantively
unreasonable because "the extent of the variance . . . lacked
the ‘compelling’ reasons required to justify sentences that
substantially deviate from the advisory guideline range."
(Appellant’s Br. 20-21).
This Court reviews a sentence for reasonableness, applying
an abuse of discretion standard. Gall, 552 U.S. at 51. In
reviewing the reasonableness of a sentence, "[w]e must ‘first
ensure that the district court committed no significant proce-
dural error . . . .’" United States v. Morace, 594 F.3d 340, 345
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(4th Cir. 2010) (quoting Gall, 552 U.S. at 51). Procedural
errors include "failing to calculate (or improperly calculating)
the Guidelines range, treating the Guidelines as mandatory,
failing to consider the § 3553(a) factors, selecting a sentence
based on clearly erroneous facts, or failing to adequately
explain the chosen sentence-including an explanation for any
deviation from the Guidelines range." Gall, 552 U.S. at 51. "If
we find no significant procedural error, we must ‘then con-
sider the substantive reasonableness of the sentence imposed
under an abuse-of-discretion standard.’" Morace, 594 F.3d at
345-46 (quoting Gall, 552 U.S. at 51).
A.
Diosdado-Star relies heavily on our decision in Moreland
to support his argument that the district court procedurally
erred by imposing a variant sentence instead of first applying
applicable departure provisions from the Guidelines. In More-
land we stated that,
in imposing a sentence after Booker, the district
court must engage in a multi-step process. First, the
court must correctly determine, after making appro-
priate findings of fact, the applicable guideline
range. Next, the court must determine whether a sen-
tence within that range . . . serves the factors set
forth in § 3553(a) and, if not, select a sentence
[within statutory limits] that does serve those factors.
In doing so, the district court should first look to
whether a departure is appropriate based on the
Guidelines Manual or relevant case law. . . . If an
appropriate basis for departure exists, the district
court may depart. If the resulting departure range
still does not serve the factors set forth in § 3553(a),
the court may then elect to impose a non-guideline
sentence (a "variance sentence").
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437 F.3d at 432 (emphasis added) (internal citations and quo-
tations omitted). Based on the foregoing language that the dis-
trict court should "first" look to a departure provision before
varying, Diosdado-Star contends the district court procedur-
ally erred by imposing the variant sentence without proceed-
ing first through the departure provisions.1
Accordingly, unless there is "a superseding contrary deci-
sion of the Supreme Court," Busby v. Crown Supply, Inc., 896
F.2d 833, 840-41 (4th Cir. 1990), Diosdado-Star argues we
must hold that the district court erred by varying before con-
sidering any applicable departures. However, for the reasons
discussed below, the Supreme Court’s decisions in United
States v. Rita, 551 U.S. 338 (2007), and Gall implicitly over-
ruled any precedential value the cited language in Moreland
may have had.
In Rita, the Supreme Court responded to the then-existing
circuit split regarding the propriety of "the use of a presump-
tion of reasonableness for within-Guidelines sentences." 551
U.S. at 346. Although the Rita Court ultimately held that a
reviewing appellate court may apply a presumption of reason-
ableness to a within-Guidelines sentence, the Court also
emphasized the deference owed to sentencing courts’ deci-
sions. Cf. id. at 354-55.
The Rita Court did not indicate either a difference or pref-
erence between departures or variances, or comment upon the
precise procedure of applying either. Instead, the Court noted
the interrelationship between the two, explaining that "it is
fair to assume that the Guidelines, insofar as practicable,
1There is a strong argument the court’s observation in Moreland to "first
look to whether a departure is appropriate" is dicta because that case did
not involve an issue as to whether a choice between a departure or vari-
ance was relevant to the sentencing decision made by the district court. In
any event, we need not resolve whether the recited statement Diosdado-
Star relies on is dicta in view of the clear authority from the Supreme
Court and this Court which resolves the issue before us.
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reflect a rough approximation of sentences that might achieve
§ 3553(a)’s objectives." Id. at 350. In fashioning an appropri-
ate sentence, the Rita Court noted that the district court "may
hear arguments by prosecution or defense that the Guidelines
sentence should not apply, perhaps because (as the Guidelines
themselves foresee) the case at hand falls outside the ‘heart-
land’ to which the Commission intends individual Guidelines
to apply," or "perhaps because the Guidelines sentence itself
fails properly to reflect § 3553(a) considerations" or "because
the case warrants a different sentence regardless." Id. at 351;
see also id. at 350 ("The sentencing courts, applying the
Guidelines in individual cases may depart (either pursuant to
the Guidelines or, since Booker, by imposing a non-
Guidelines sentence)." (emphasis added)). Thus, Rita recog-
nized that a sentencing court has flexibility in fashioning a
sentence outside of the Guidelines range, and ultimately
requires only that a district court "set forth enough to satisfy
the appellate court that [it] has considered the parties’ argu-
ments and has a reasoned basis for exercising [its] own legal
decisionmaking authority." Id. at 356.
In Gall, the Supreme Court delineated in more detail the
proper procedure for a district court to follow in sentencing,
again stressing the deference owed to district courts’ sentenc-
ing decisions. See, e.g., 552 U.S. at 51-52, 56. Of course, "a
district court should begin all sentencing proceedings by cor-
rectly calculating the applicable Guidelines range." Id. at 49.
However, "[t]he Guidelines are not the only consideration
. . . . Accordingly, after giving both parties an opportunity to
argue for whatever sentence they deem appropriate, the dis-
trict judge should then consider all of the § 3553(a) factors to
determine whether they support the sentence requested by a
party." Id. at 49-50. The Gall Court used the terms "variance"
and "departure" interchangeably, directing that, if the district
court "decides that an outside-Guidelines sentence is war-
ranted, [the court] must consider the extent of the deviation
and ensure that the justification is sufficiently compelling to
support the degree of the variance. We find it uncontroversial
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that a major departure should be supported by a more signifi-
cant justification than a minor one." Id. at 50 (emphasis
added).
Furthermore, both Gall and Rita make clear that the practi-
cal effects of applying either a departure or a variance are the
same. Together, the decisions direct that any sentence, within
or outside of the Guidelines range, as a result of a departure
or of a variance, must be reviewed by appellate courts for rea-
sonableness pursuant to an abuse of discretion standard. See
Rita, 551 U.S. at 350, 354-55; Gall, 552 U.S. at 46, 49, 51.
Furthermore, either when applying a departure provision or
varying from the Guidelines range, the district court must give
"serious consideration to the extent" of the departure or vari-
ance, and "must adequately explain the chosen sentence to
allow for meaningful appellate review and to promote the per-
ception of fair sentencing." Gall, 552 U.S. at 46, 50 (citation
omitted). Therefore, the method by which the district court
deviates from the Guidelines range does not alter (1) the
review in which the courts of appeals must engage, or (2) the
justification the district court must provide.
We effectively acknowledged that Gall and Rita overruled
any effect of the recited language from Moreland in United
States v. Evans, 526 F.3d 155 (4th Cir. 2008). In Evans, the
district court relied both on a variance and two departure pro-
visions to "justif[y] its substantial upward deviation from the
advisory Guidelines range." 526 F.3d at 164. On appeal,
Evans argued that "neither of these Guidelines [departure]
provisions permits an upward deviation here, and therefore
[this Court] must find the sentence unreasonable." Id.
However, we held that, "even if Evans is correct and the
Guidelines themselves do not sanction the deviation . . ., the
sentence remains reasonable because it properly reflects the
§ 3553(a) considerations." Id. Citing both Gall and Rita, we
reasoned:
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[A]lthough adherence to the advisory Guidelines
departure provisions provides one way for a district
court to fashion a reasonable sentence outside the
Guidelines range, it is not the only way. Rather, after
calculating the correct Guidelines range, if the dis-
trict court determines that a sentence outside that
range is appropriate, it may base its sentence on the
Guidelines departure provisions or on other factors
so long as it provides adequate justification for the
deviation.
When reviewing the sentence selected by the dis-
trict court, regardless of whether the court deviates
from the advisory Guidelines range because of a
Guidelines-sanctioned departure, or because of one
or more § 3553(a) factors, or because of some other
reason-that is, no matter what provides the basis for
a deviation from the Guidelines range-we review the
resulting sentence only for reasonableness.
. . .
When, as here, a district court offers two or more
independent rationales for its deviation, an appellate
court cannot hold the sentence unreasonable if the
appellate court finds fault with just one of these
rationales. Picking through the district court’s analy-
sis in that manner would be wholly inconsistent with
the Supreme Court’s directives to examine the "total-
ity of the circumstances," and to defer to the consid-
ered judgment of the district court.
Id. at 164-65. (citations omitted). By so holding, we found
that the method of deviation from the Guidelines
range—whether by a departure or by varying—is irrelevant so
long as at least one rationale is justified and reasonable.
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Accordingly, as recognized in Evans, we find that Gall and
Rita were "superseding contrary decision[s] of the Supreme
Court" that implicitly overruled the effect, if any, of the lan-
guage in Moreland relied on by Diosdado-Star, which we rec-
ognized in Evans. See Busby, 896 F.2d at 840-41. Thus, we
are not bound by the language in Moreland that "the district
court should first look to whether a departure is appropriate"
before varying.2 Moreland, 437 F.3d at 432. Accordingly,
Gall, Rita, and Evans foreclose Diosdado-Star’s argument
that the district court procedurally erred in deviating from the
Guidelines range.3
B.
Having determined that Diosdado-Star’s sentence is proce-
durally reasonable, we next turn to his claim that his sentence
is substantively unreasonable. In considering the substantive
reasonableness of a sentence, we must determine "whether the
sentence was reasonable-i.e., whether the District Judge
abused his discretion in determining that the § 3553(a) factors
supported [the sentence] and justified a substantial deviation
from the Guidelines range." Gall, 552 U.S. at 56. We also
must
take into account the totality of the circumstances,
including the extent of any variance from the Guide-
lines range. . . . [I]f the sentence is outside the
Guidelines range, the court may not apply a pre-
sumption of unreasonableness. It may consider the
extent of the deviation, but must give due deference
to the district court’s decision that the § 3553(a) fac-
2We offer no comment on the observation of several other circuit courts
of appeals that the departure provisions of the Guidelines are obsolete.
See, e.g., United States v. Mohamed, 459 F.3d 979, 985-87 (9th Cir.
2006); United States v. Arnaout, 431 F.3d 994, 1003-04 (7th Cir. 2005).
3We note that Diosdado-Star made no argument that the district court
erred in any way in calculating the advisory Guidelines range.
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tors, on a whole, justify the extent of the variance.
The fact that the appellate court might reasonably
have concluded that a different sentence was appro-
priate is insufficient to justify reversal of the district
court.
Id. at 51. This deference is due in part because "[t]he sentenc-
ing judge is in a superior position to find facts and judge their
import [and] [t]he judge sees and hears the evidence, makes
credibility determinations, has full knowledge of the facts and
gains insights not conveyed by the record." Id. (quotations
omitted); see also Rita, 551 U.S. at 357-58 (the district court
also "has access to, and greater familiarity with, the individual
case and the individual defendant before [the court] than the
Commission or the appeals court").
Although the district court’s justification for the sentence
must "support[ ] the degree of the variance," and "a major
departure should be supported by a more significant justifica-
tion than a minor one[,] . . . a district court need not justify
a sentence outside the Guidelines range with a finding of
extraordinary circumstances." Evans, 526 F.3d at 161 (quota-
tions and citation omitted). Reviewing courts must be mindful
that, regardless of "the individual case," the "deferential
abuse-of-discretion standard of review . . . applies to all sen-
tencing decisions." Gall, 552 U.S. at 52.
In the case at bar, the district court sentenced Diosdado-
Star to a term of imprisonment in excess of six years above
the top of the recommended Guidelines range. While this
increase is certainly substantial, it does not constitute an abuse
of discretion based on the totality of the circumstances. The
district court properly considered and fully explained its deci-
sion pursuant to the factors set forth in 18 U.S.C. § 3553(a),
particularly factor §3553(a)(1): "the nature and circumstances
of the offense and the history and characteristics of the defen-
dant." As the district court noted, the extent and seriousness
of Diosdado-Star’s conduct was considerable. Diosdado-Star
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admitted to impersonating a BPA in furtherance of his scheme
to perpetrate a fraud upon many vulnerable victims. He also
gleaned a substantial financial profit from the fraud. Further-
more, the district court noted that Diosdado-Star’s likelihood
of recidivism was high, thus recognizing the need "to protect
the public from further crimes of the defendant."
§ 3553(a)(2)(C). Therefore, we conclude that we must "give[ ]
due deference to the District Court’s reasoned and reasonable
decision that the § 3553(a) factors, on the whole, justified the
sentence" of 84 months’ imprisonment. Gall, 552 U.S. at 59-
60.
III.
For the foregoing reasons, we hold that the district court
did not abuse its discretion in imposing the sentence. Accord-
ingly, the judgment of the district court is
AFFIRMED.
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