United States of America v. Isidro Zapata-Calzada

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4968
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ISIDRO ZAPATA-CALZADA,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:11-cr-00132-HEH-1)
Submitted: April 24, 2012 Decided: May 4, 2012
Before WILKINSON, NIEMEYER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Valencia D.
Roberts, Assistant Federal Public Defender, Patrick L. Bryant,
Appellate Attorney, Richmond, Virginia, for Appellant. Neil H.
MacBride, United States Attorney, S. David Schiller, Assistant
United States Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Isidro Zapata-Calzada pled guilty to illegal reentry
after removal following conviction for an aggravated felony, in
violation of 8 U.S.C. § 1326(a), (b)(2) (2006). At sentencing,
the district court departed upward from Zapata-Calzada’s
initially calculated Guidelines range of forty-one months to
fifty-one months, and sentenced him to sixty-five months’
imprisonment. On appeal, Zapata-Calzada argues that his
sentence is procedurally and substantively unreasonable.
Specifically, he claims that the district court imposed an
upward variance without sufficient basis and that, after varying
upward to a new Guidelines range, the court failed to adequately
explain its decision to impose a sentence in the middle of that
range. We affirm.
As this court has explained, “no matter what provides
the basis for a deviation from the Guidelines range[,] [it]
review[s] the resulting sentence only for reasonableness.”
United States v. Evans, 526 F.3d 155, 164 (4th Cir. 2008)
(citing Gall v. United States, 552 U.S. 38, 50 (2007)). In
doing so, this court applies an abuse-of-discretion standard.
Gall, 552 U.S. at 51. This review involves two steps: under the
first, the court examines the sentence for significant
procedural errors, and under the second, the court reviews the

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substance of the sentence. United States v. Pauley, 511 F.3d
468, 473 (4th Cir. 2007) (examining Gall, 552 U.S. at 50-51).
When the district court imposes a departure or
variance sentence, this court considers 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.
Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir. 2007). The
district court “has flexibility in fashioning a sentence outside
of the Guidelines range,” and need only “set forth enough to
satisfy the appellate court that it has considered the parties’
arguments and has a reasoned basis” for its decision. United
States v. Diosdado-Star, 630 F.3d 359, 364 (4th Cir.) (citing
Rita v. United States, 551 U.S. 338, 356 (2007)), cert. denied,
131 S. Ct. 2946 (2011).
On appeal, Zapata-Calzada first argues that the
district court’s upward departure by two criminal history
categories was not warranted. The district court noted that
Zapata-Calzada’s immediate return to the United States after
deportation, which occurred following his release from a three-
year sentence imposed after his conviction for aggravated sexual
battery of a child less than thirteen years of age, was not
adequately reflected in the initially calculated Guidelines
range. The court then integrated consideration of the 18 U.S.C.

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§ 3553(a) (2006) factors and concluded, in Zapata-Calzada’s
case, criminal history categories II and III were inadequate to
promote respect for the law, provide for deterrence, protect the
community, and reflect the nature and circumstance of the
offense of conviction. It subsequently determined that the
goals of 18 U.S.C. § 3553(a) could best be achieved at a total
offense level of twenty-one, a criminal history category of IV,
and a resulting Guidelines range of fifty-seven to seventy-one
months’ imprisonment. We hold that the sentence is
substantively reasonable in light of the seriousness of Zapata-
Calzada’s criminal history and the district court’s reasoned
analysis of the relevant § 3553(a) factors. See Diosdado-Star,
630 F.3d at 365-66 (finding 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).
Zapata-Calzada also argues the sentence imposed is
procedurally unreasonable as the district court failed to
provide a sufficient explanation for the sentence it ultimately
imposed. The reasons articulated by the district court for a
given sentence need not be “couched in the precise language of
§ 3553(a),” so long as the “reasons can be matched to a factor
appropriate for consideration . . . and [are] clearly tied [to

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the defendant’s] particular situation.” United States v.
Moulden, 478 F.3d 652, 658 (4th Cir. 2007).
It is apparent from the record that the district court
considered both parties’ arguments and had a reasoned basis for
its variance from the Guidelines range. The district court was
most concerned with the repetitive nature and circumstances of
the offense, and specifically rejected Zapata-Calzada’s claim
that the originally calculated Guidelines range provided
satisfactory and appropriate punishment that was sufficient but
not more than necessary to punish the offense of conviction.
The court determined that a variance sentence was required to
satisfy the objectives of § 3553(a); the sentence imposed was
necessary to deter Zapata-Calzada and others from illegally
reentering the United States; and the sentence was necessary to
promote respect for the law and to protect the citizens of the
United States. The district court concluded that a Guidelines
range of fifty-seven to seventy-one months was adequate to serve
the purposes of 18 U.S.C. § 3553(a), and we conclude the
district court did not commit any “significant procedural error”
in choosing a sentence in the middle of that range. See Gall,
552 U.S. at 51.
Because the district court did not abuse its
discretion in imposing a sixty-five-month sentence, we affirm
the judgment of the district court. We dispense with oral

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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

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