United States of America v. Santos Anibal Caballero Fernandez, a/k/a Garra

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4664
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SANTOS ANIBAL CABALLERO FERNANDEZ, a/k/a Garra,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., District Judge. (3:08-cr-00134-RJC-DSC-23)
Submitted: July 29, 2014 Decided: August 8, 2014
Before TRAXLER, Chief Judge, and DIAZ and THACKER, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
David Q. Burgess, LAW OFFICE OF DAVID Q. BURGESS, Charlotte,
North Carolina, for Appellant. Anne M. Tompkins, United States
Attorney, Amy E. Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Santos Anibal Caballero Fernandez (“Caballero
Fernandez”) appeals the sentence imposed following the reversal
of one conviction and the remand for resentencing on his
remaining convictions. For the reasons that follow, we affirm.
A federal grand jury charged Caballero Fernandez and
twenty-five other members of the worldwide street gang MS-13
with various gang-related crimes. In Caballero Fernandez’s
case, a jury convicted him of conspiracy to commit racketeering,
in violation of 18 U.S.C. § 1962(d) (2012) (Count One),
possession of a firearm by an illegal alien and aiding and
abetting the same, in violation of 18 U.S.C. §§ 922(g)(5), 2
(2012) (Count Eight), and accessory after the fact to murder in
aid of racketeering, in violation of 18 U.S.C. §§ 3, 1959 (2012)
(Count Fifty-Three). On appeal, we affirmed Caballero
Fernandez’s conspiracy to commit racketeering conviction,
reversed his accessory-after-the-fact-to-murder conviction on
the ground that the evidence was insufficient to show that
Caballero Fernandez knew the victim was dead or dying during the
relevant time period, and remanded for resentencing.
At the resentencing hearing, after determining that
there were no objections, the court adopted the Guidelines
calculations in the supplemental presentence report (“PSR”),
which established a Guidelines range of seventy to eighty-seven

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months’ imprisonment. Defense counsel argued for a sentence
within this range, noting that the original sentence had been
within the original 135 to 168 month Guidelines range. After
listening to the parties’ arguments and Caballero Fernandez’s
allocution, the district court imposed an upward variance
sentence of 135 months on the conspiracy to commit racketeering
conviction (Count One) and a concurrent 120 months (the
statutory maximum) on the firearm conviction (Count Eight).
In this appeal, Caballero Fernandez challenges the
district court’s finding, for sentencing purposes, that he aided
and abetted the murder that was the subject of his reversed
accessory-after-the-fact conviction and the substantive
reasonableness of the upward variance. We review a sentence for
procedural and substantive reasonableness under an abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 51
(2007). The same standard applies whether the sentence is
“inside, just outside, or significantly outside the Guidelines
range.” United States v. Rivera-Santana, 668 F.3d 95, 100-01
(4th Cir.) (internal citation and quotation marks omitted),
cert. denied, 133 S. Ct. 274 (2012). In determining procedural
reasonableness, we consider whether the district court properly
calculated the defendant’s advisory Guidelines range, gave the
parties an opportunity to argue for an appropriate sentence,
considered the 18 U.S.C. § 3553(a) (2012) factors, selected a

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sentence supported by the facts, and sufficiently explained the
selected sentence. Gall, 552 U.S. at 49-51.
If the sentence is free of procedural error, we review
it for substantive reasonableness. Id. at 51. “Substantive
reasonableness examines the totality of the circumstances to see
whether the sentencing court abused its discretion in concluding
that the sentence it chose satisfied the standards set forth in
§ 3553(a).” United States v. Mendoza-Mendoza, 597 F.3d 212, 216
(4th Cir. 2010). In reviewing any sentence outside the
Guidelines range, we give due deference to the sentencing
court’s decision because it “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. 2011) (quoting Rita v. United States, 551 U.S. 338,
356 (2007) (alteration in original)).
The district court imposed an upward variance sentence
based in part on its finding that Caballero Fernandez was
involved in the murder of Ulisses Mayo. Caballero Fernandez
challenges that finding, emphasizing that Mayo’s murder was the
subject of his reversed accessory-after-the-fact conviction. A
factual finding is clearly erroneous if “the reviewing court on
the entire evidence is left with the definite and firm

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conviction that a mistake has been committed.” United States v.
Harvey, 532 F.3d 326, 336-37 (4th Cir. 2008) (internal quotation
marks omitted). “[A] sentencing court may consider uncharged
and acquitted conduct in determining a sentence, as long as that
conduct is proven by a preponderance of the evidence.” United
States v. Grubbs, 585 F.3d 793, 799 (4th Cir. 2009).
Our review of the record leads us to conclude that the
district court did not clearly err in finding by a preponderance
of the evidence that Caballero Fernandez aided and abetted the
murder. Furthermore, as relevant to Caballero Fernandez’s
history and characteristics and other § 3553(a) sentencing
factors, we conclude the district court did not err in
considering Caballero Fernandez’s involvement in the murder in
imposing the variance. United States v. Overstreet, 713 F.3d
627, 638 n.14 (11th Cir. 2013); see also United States v. Rhine,
637 F.3d 525, 528–29 (5th Cir. 2011) (holding that a district
court may consider criminal activity of a defendant that was not
relevant conduct as part of the history of the defendant), cert.
denied, 132 S. Ct. 1001 (2012).
Next, Caballero Fernandez challenges the extent of the
variance. When the district court imposes either a variance or
a departure sentence, this court “consider[s] whether the
sentencing court acted reasonably both with respect to its
decision to impose such a sentence and with respect to the

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extent of the divergence from the sentencing range.” United
States v. Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir.
2007). A greater variance requires more substantial
justification. Diosdado-Star, 630 F.3d at 366. This Court will
affirm if the § 3553(a) factors, on the whole, justified the
sentence imposed. Id. at 366.
Here, in finding that a sentence consisting of 135
months on Count One and a concurrent 120 months (the statutory
maximum) on Count Eight was sufficient but not greater than
necessary to accomplish the § 3553(a) sentencing goals, the
district court took into account Caballero Fernandez’s prior
firearm offense, his membership and involvement in a violent
gang, his role in the first degree murder of Mayo (which the
district court found was part of the racketeering conspiracy for
which Caballero Fernandez was convicted), his intimidation of a
witness to that murder, and the fact that a month after the
murder Caballero Fernandez was found with gang members in a car
with several firearms including the murder weapon shortly after
a home invasion.
All of these considerations by the court speak
directly to several § 3553(a) factors. See 18 U.S.C.
§ 3553(a)(1) (“the nature and circumstances of the offense and
the history and characteristics of the defendant”); 18 U.S.C.
§ 3553(a)(2)(A) (the need for the sentence “to reflect the

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seriousness of the offense, to promote respect for the law, and
to provide just punishment”); 18 U.S.C. § 3553(a)(2)(B) (the
need to deter criminal conduct); 18 U.S.C. § 3553(a)(2)(C) (the
need “to protect the public from further crimes of the
defendant”).
Given the district court’s consideration of the
parties’ arguments and the § 3553(a) sentencing factors, and its
articulation of reasons warranting an upward variance, we defer
to the district court’s determination as to the extent of the
variance. United States v. Hargrove, 701 F.3d 156, 163-64 (4th
Cir. 2012) (affirming variance from zero-to-six-month Guidelines
range to sixty-month sentence), cert. denied, 133 S. Ct. 1862
and cert. denied, 133 S. Ct. 2403 (2013); Diosdado-Star, 630
F.3d at 366-67 (affirming variance sentence six years greater
than Guidelines range because sentence was based on the district
court’s examination of relevant § 3553(a) factors); 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.”). We
conclude that the district court acted reasonably in imposing
Caballero Fernandez’s variance sentence.
Accordingly, we affirm Caballero Fernandez’s sentence.
We dispense with oral argument because the facts and legal

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contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED

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