United States of America v. Dagoberto Tiznado, a/k/a Dago Berto Tiznado, a/k/a Dagoberto Soriano-Tiznado, a/k/a…

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4460
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAGOBERTO TIZNADO, a/k/a Dago Berto Tiznado, a/k/a Dagoberto
Soriano-Tiznado, a/k/a Walter Soriano,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:11-cr-00608-CCB-1)
Submitted: May 30, 2013 Decided: June 6, 2013
Before WILKINSON, KING, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Steven H. Jesser, STEVEN H. JESSER, ATTORNEY AT LAW, P.C.,
Skokie, Illinois, for Appellant. Christine Lisa Duey, OFFICE OF
THE UNITED STATES ATTORNEY, Baltimore, Maryland; Roger Kristian
Picker, U.S. CITIZENSHIP & IMMIGRATION SERVICES, Baltimore,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Dagoberto Tiznado pled guilty, pursuant to a plea
agreement, to illegal reentry following a conviction for an
aggravated felony in violation of 8 U.S.C. § 1326(a), (b)(2)
(2006). The district court calculated Tiznado’s advisory
Guidelines range as twenty-seven to thirty-three months, imposed
an upward variance, and sentenced Tiznado to fifty months’
imprisonment. He appeals. Tiznado’s attorney has filed a brief
in accordance with Anders v. California, 386 U.S. 738 (1967), in
which he asserts that there are no meritorious issues for appeal
but challenges Tiznado’s sentence. Although advised of his
right to file a supplemental pro se brief, Tiznado has not done
so. Finding no error, we affirm.
We review the district court’s sentence, “whether
inside, just outside, or significantly outside the Guidelines
range[,] . . . under a deferential abuse-of-discretion
standard.” Gall v. United States, 552 U.S. 38, 41 (2007). This
standard of review involves two steps; under the first, we
examine the sentence for significant procedural errors, and
under the second, we review the substance of the sentence.
United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007)
(analyzing Gall, 552 U.S. at 50-51). Significant procedural
errors include “failing to calculate (or improperly calculating)
the Guidelines range, treating the Guidelines as mandatory,

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failing to consider the [18 U.S.C.] § 3553(a) [(2006)] 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 there are no significant procedural errors,
we then consider the substantive reasonableness of the sentence,
tak[ing] into account the totality of the circumstances.” Id.
When the district court imposes a variant sentence, we
consider “whether the . . . 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). Such a sentence is unreasonable if the
district court “provided an inadequate statement of reasons or
relie[d] on improper factors in imposing a sentence outside the
properly calculated advisory sentencing range.” Id.
At sentencing — after properly calculating Tiznado’s
Guidelines range, hearing argument from counsel, and giving
Tiznado the opportunity to allocute — the district court
concluded that an upward variance under § 3553(a) to fifty
months’ imprisonment was necessary to comply with the purposes
of sentencing. In reaching this conclusion, the court properly
considered Tiznado’s history and characteristics and the need
for the sentence to afford adequate deterrence, 18 U.S.C.

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§ 3553(a)(1), (2)(B), making note of the fact that Tiznado was a
repeat offender despite his prior forty-six month sentence for
an identical offense and his promise to the court at the time of
his sentencing for the earlier conviction that he would not
return to the United States. The district court’s consideration
of relevant 18 U.S.C. § 3553(a) factors and articulation of the
reasons warranting an upward variance from the Guidelines range
support our decision to defer to the district court’s
determination as to the extent of the variance. United States
v. Diosdado-Star, 630 F.3d 359, 366-67 (4th Cir.) (affirming
substantive reasonableness of variance sentence six years
greater than Guidelines range because sentence was based on the
district court’s examination of relevant § 3553(a) factors),
cert. denied, 131 S. Ct. 2946 (2011); see also United States v.
Angle, 598 F.3d 352, 359 (7th Cir. 2010) (“All that matters is
that the sentence imposed be reasonable in relation to the
‘package’ of reasons given by the court.”).
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm the district court’s judgment. Counsel’s
motion to withdraw from representation is denied. This court
requires that counsel inform Tiznado, in writing, of the right
to petition the Supreme Court of the United States for further
review. If Tiznado requests that a petition be filed, but

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counsel believes that such a petition would be frivolous, then
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Tiznado. We dispense with oral 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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