                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-4079


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

GABRIEL TORRES GUTIERREZ,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:11-cr-00102-MR-DLH-1)


Argued:   March 20, 2014                  Decided:   April 30, 2014


Before WILKINSON, MOTZ, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Asheville, North Carolina, for Appellant.
William Michael Miller, OFFICE OF THE UNITED STATES ATTORNEY,
Charlotte, North Carolina, for Appellee.     ON BRIEF: Henderson
Hill, Executive Director, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Charlotte, North Carolina, for Appellant. Anne
M. Tompkins, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Gabriel Torres Gutierrez appeals his 78-month sentence for

illegal reentry.            He contends that the district court committed

plain error in calculating his Sentencing Guidelines range and

that    his    sentence      was     substantively    unreasonable.      For      the

reasons that follow, we affirm.



                                            I.

       Born in Mexico in 1966, Gutierrez unlawfully entered the

United States sometime before 1987 and settled in Los Angeles.

He amassed a substantial criminal record in Southern California.

In   less     than    ten    years    he   was   convicted   of   shooting   at    an

inhabited      dwelling        or     occupied    vehicle,    possession     of     a

controlled substance, indecent exposure, and disorderly conduct.

He moved to North Carolina in the 1990s, but returned to Mexico

sometime after he was convicted of driving without a license in

1998.

       On July 11, 1999, border officials apprehended Gutierrez as

he attempted to reenter the United States using a forged birth

certificate.         Immigration officials removed him to Mexico the

same day.       After illegally entering the country later that year

with    the    help    of     a     “coyote,”    Gutierrez   returned   to   North

Carolina, where police apprehended him in 2000 for possession of

marijuana with intent to sell.               He was again deported to Mexico.

                                            2
Less than a year later, in 2002, border officials apprehended

Gutierrez running near the Rio Grande River in Texas.                     After

admitting that he was in the country illegally, Gutierrez was

acquitted of illegal reentry and was deported yet again.                   Four

years later, in 2006, authorities arrested Gutierrez for theft

and   deported    him   to   Mexico.     In   2007,    immigration   officials

apprehended him as he tried once more to cross the border, this

time without identification.           A court convicted him of illegal

reentry and sentenced him to 12 months’ imprisonment.                     After

serving his sentence, Gutierrez was deported to Mexico in 2008.

In 2010, Gutierrez illegally returned to North Carolina one last

time, where police arrested him for obtaining property by false

pretenses and obstruction of justice.               This final apprehension

in the United States marked Gutierrez’s sixth illegal return to

the United States.

      Gutierrez pleaded guilty to illegal reentry by an unlawful

alien, 8 U.S.C. §§ 1326(a) & (b)(2), before a federal magistrate

judge on January 18, 2012.             Prior to the sentencing hearing,

Gutierrez’s probation officer drafted a presentence report.                 In

calculating      Gutierrez’s   offense     level,     the   probation   officer

applied a 12-point sentence enhancement under Section 2L1.2 of

the U.S. Sentencing Guidelines on the ground that Gutierrez had

previously been deported after committing a “crime of violence.”

The probation officer concluded that Gutierrez’s 1987 California

                                       3
conviction for “shooting at an inhabited dwelling or occupied

vehicle,”      Cal.     Penal          Code      § 246,        qualified       as       a     crime    of

violence under the Guidelines.                       This enhancement yielded a total

offense level of 17, resulting in a recommended Guidelines range

of 37-46 months’ imprisonment.                       The probation officer noted that

there     “appears         to     be        no   circumstance           or     combination             of

circumstances        that        warrant         a   departure         from    the          prescribed

sentencing guidelines.”

     Gutierrez did not object to the imposition of the 12-point

enhancement.          Rather,          at    the     sentencing        hearing,             Gutierrez’s

counsel argued that Gutierrez deserved a sentence “in the low to

mid-range      of    the     guidelines”             given     that     he    returned          to    the

United States only after being attacked in Mexico for refusing

to participate in the Mexican drug trade.                                   The Government, by

contrast,      asked       for     a    sentence          “at    the     upper          end    of     the

guideline range” given Gutierrez’s “history of recidivism” and

given   that    he     had      never       “really       ever    received          a    significant

sentence” for his past crimes.

     Gutierrez himself also provided a statement at the hearing.

He acknowledged that he made “poor decisions,” but stated that

he had returned to the United States “with the intention of

working    honestly         as    God        instructs.”           He       explained          that    he

returned to the United States only after members of “organized

crime   in     [his]       country”           beat       him    into    a     three-week            coma.

                                                     4
      After considering the Section 3553(a) factors, the district

court    sentenced       Gutierrez       to    78     months’       imprisonment         --    an

upward variance of 30 months from the high end of the Guidelines

range.      The       court    explained       that     it     was    not    imposing         the

variance due to “the seriousness of the offense” -- the court

noted     that    Guidelines          already        accounted       for     that    factor.

Rather, the court concluded that the variance was “necessary to

promote respect for the law and to afford adequate deterrence to

criminal conduct, not just by this defendant but by others.”

The   court      emphasized         Gutierrez’s       six    illegal       reentries,         and

noted that “with almost every one of these returns there [were]

additional crimes on the criminal history.”                          Moreover, the court

pointed out that Gutierrez had been punished leniently after

previous illegal reentries -- receiving the “benefit of fast

track treatment” so as to avoid jail time with respect to some

crimes.       Although        the    court    expressed        “substantial         sympathy”

regarding     Gutierrez’s           violent    treatment       in    Mexico,       the   court

noted     that    this    mistreatment            did    not    excuse       his     repeated

violations       of   United        States    law.       The    court       concluded     that

Gutierrez’s conduct amounted to “a long-term pattern of not only

disrespect for the law but disregard for the law.”

        Gutierrez’s      counsel       argued       that     the     Guidelines       already

accounted     for      Gutierrez’s       history        of   recidivism        and    that     a

variance was therefore improper.                    Counsel also contended that he

                                              5
had not been “given adequate notice that the Court intended to

upwardly      depart     or   vary,”      and      therefore      that    he    lacked    a

sufficient opportunity to respond to the court’s concerns.                              The

court    rejected      both   arguments.            Gutierrez      timely      noted    this

appeal.

      We      review     a    criminal        sentence        for       procedural       and

substantive reasonableness.              United States v. Gall, 552 U.S. 38,

51   (2007).        We   first    determine         whether       the    district      court

committed a significant procedural error such as miscalculating

the applicable Guidelines range.                    Id.      If no procedural error

occurred, we next determine whether the sentence imposed was

nevertheless substantively unreasonable, applying an abuse-of-

discretion standard.            Id.     Gutierrez contends that the district

court      committed     both     procedural         and     substantive        error    in

calculating his sentence.             We address each contention in turn.



                                           II.

        Gutierrez      initially        asserts       that     the      district       court

committed      procedural       error    by       imposing    a   12-point      crime-of-

violence enhancement.

        The   Guidelines      subject     a   defendant       convicted        of   illegal

reentry to a 12-point (or 16-point) sentence enhancement if he

was previously deported after committing a “crime of violence.”

U.S.S.G.      §   2L1.2(b)(1)(A)(ii).                The     Guidelines        commentary

                                              6
defines a crime of violence, in relevant part, as any “offense

under federal, state, or local law that has as an element the

use, attempted use, or threatened use of physical force against

the person of another.”          Id. cmt. n.1(B)(iii).          We refer to this

Guidelines provision as the “force clause.”                  The district court

imposed a 12-point enhancement on the ground that Gutierrez’s

California conviction for shooting at an inhabited dwelling or

occupied vehicle qualified as a “crime of violence” under the

force    clause.      Gutierrez       did   not   object   to   the    enhancement.

Consequently, as he recognizes, our only review is for plain

error.

     A party asserting plain error must show (1) that an error

occurred, (2) that the error was plain, and (3) that the error

affected substantial rights.                United States v. Slade, 631 F.3d

185, 190 (4th Cir. 2011).             If these three conditions are met, we

correct    the    error   only    if    the     error   “seriously     affects   the

fairness,        integrity,      or     public      reputation        of   judicial

proceedings.”        Id. at 192.            We are admonished to resist the

“reflexive inclination” to reverse unpreserved error.                       Puckett

v. United States, 556 U.S. 129, 134 (2009) (citation omitted).

     Gutierrez claims that the district court erred by treating

his California conviction as a crime of violence.                     He points to

Fourth Circuit precedent holding that crimes involving a mens

rea of mere recklessness cannot qualify as crimes of violence

                                            7
under the force clause.            See Garcia v. Gonzalez, 455 F.3d 465,

468 (4th Cir. 2006); Bejarano-Urrutia v. Gonzalez, 413 F.3d 444,

447 (4th Cir. 2005).           And he contends that the California crime

of shooting at an inhabited dwelling requires mere recklessness

rather than purposeful conduct.                 Accordingly, he urges us to

agree    with   the    Ninth    Circuit       that    a    conviction       under    this

statute does not constitute a crime of violence.                            See United

States v. Narvaez-Gomez, 489 F.3d 970, 977 (9th Cir. 2007).

        We need not resolve whether the district court erred by

treating     Gutierrez’s       California       conviction        as    a    crime    of

violence, however, because, even if it did err, Gutierrez cannot

establish that the error was plain.

        An error is plain “if the settled law of the Supreme Court

or this circuit establishes that an error has occurred.”                        United

States v. Carthorne, 726 F.3d 503, 516 (citation omitted).                             In

the absence of binding precedent, “decisions by other circuit

courts of appeals are pertinent to the question of whether an

error is plain.”        United States v. Rouse, 362 F.3d 256, 263 (4th

Cir. 2004) (citation omitted).                 But if our court has yet to

speak directly on a legal issue and other circuits are split, “a

district    court     does   not   commit     plain       error   by   following     the

reasoning of another circuit.”                United States v. Strieper, 666

F.3d 288, 295 (4th Cir. 2012).



                                          8
        The combination of several facts requires the conclusion

that any error here was not plain.                        First, no case from this

court or the Supreme Court provides that the California statute

at issue does not qualify as a crime of violence.                                       Thus, to

conclude that Gutierrez’s California conviction should not yield

a   sentence       enhancement,          the    district       court       would       have   been

required to        delve        into    an   unsettled        area    of    California        law.

This absence of dispositive federal precedent suggests that any

error by the district court was not obvious.

        Moreover,     cases       from       other     circuits      create     an      arguable

circuit      split    on    the        question      presented       here.      The       Seventh

Circuit      has   held     that       an    Illinois     conviction         for       aggravated

discharge of a firearm -- a crime similar to the California

crime    committed         by    Gutierrez        --   does    constitute          a    crime    of

violence under § 2L1.2(b)(1)(A).                       See United States v. Curtis,

645 F.3d 937, 941 (7th Cir. 2011).                        But the Ninth Circuit has

held    to   the     contrary.           See   Narvaez-Gomez,          489    F.3d       at   977.

Gutierrez posits that Curtis is distinguishable from Narvaez-

Gomez    because      the       Illinois       statute    required         “intentional         or

knowing” conduct, Curtis, 645 F.3d at 942, while the California

crime “may result from purely reckless conduct,” Narvaez-Gomez,

489 F.3d at 977.                But even assuming that the two cases, upon

close    analysis,      may       be    so   distinguished,          the     cases      at    least

suggest a disagreement among the circuits.                            Moreover, prior to

                                                9
Narvaez-Gomez,        the    Ninth     Circuit         itself       had    held      that   the

California     statute       at    issue    here       categorically           constituted      a

crime of violence.           See United States v. Lopez-Torres, 443 F.3d

1182,   1185    (9th     Cir.      2006),     abrogated         by       Fernandez–Ruiz        v.

Gonzales,      466    F.3d    1121     (9th      Cir.       2006)        (en    banc).      The

apparently     inconsistent         case    law    on       this     question        undermines

Gutierrez’s contention that the district court plainly erred.

      Additionally, the cases from this court establishing that

crimes of violence cannot rest on reckless conduct arose in the

immigration context rather than the context of the Sentencing

Guidelines.      See Garcia, 455 F.3d at 465; Bejarano-Urrutia, 413

F.3d at 444.         Although we interpret force clauses in different

statutes     identically       for    purposes         of    “ascertaining           whether    a

prior conviction is a crime of violence,” United States v. Vann,

660   F.3d   771,     773    n.2     (4th   Cir.       2011)       (en    banc),      the   fact

remains that, in the Guidelines context, we have never held that

a crime involving mere recklessness cannot qualify as a crime of

violence -- further suggesting that any error was not plain.

      Taken together, these facts cloud the proper resolution of

this case with enough uncertainty that we cannot hold that the

district      court      plainly       erred       in        imposing          the     12-point

enhancement.         Accordingly, we must reject Gutierrez’s contention

that the     district       court     imposed      a    sentence         that    was   plainly

procedurally unreasonable.

                                            10
                                               III.

      Gutierrez’s challenge to the substantive reasonableness of

his   sentence      fares     no    better.           In    reviewing         a    sentence       for

substantive reasonableness, we take “into account the totality

of the circumstances, including the extent of any variance from

the Guidelines range.”              Gall, 552 U.S. at 51.                     In reviewing an

above-Guidelines            sentence,      we     “consider            the    extent       of     the

deviation    and        ensure     that    the       justification            is    sufficiently

compelling to support the degree of the variance.”                                    Id. at 50.

A   major   departure        should       be    supported         by    a    more    significant

justification than a minor one.                       Id.         But an appellate court

“must give due deference to the district court’s decision that

the § 3553(a) factors, on a whole, justify the extent of the

variance.”    Id. at 51.

      After considering the Section 3553(a) factors, the district

court     imposed       a    78-month          sentence,       finding            this    sentence

“necessary to promote respect for the law and to afford adequate

deterrence to criminal conduct, not just by this defendant but

by others.”        The court noted Gutierrez’s history of six illegal

reentries,        and       emphasized         that        almost       each        reentry       was

accompanied by new violations of the law -- including “firing a

firearm     into    an      occupied       dwelling,”         “drug          convictions,”         “a

conviction    for        indecent     exposure,”            and     “theft.”             The    court

pointed     out    that      Gutierrez         received       lenient          treatment         with

                                                11
respect to many of his past crimes, but nevertheless continued

to commit new ones.               After expressing sympathy regarding the

violence Gutierrez endured in Mexico, the court admonished that

this violence did not excuse Gutierrez’s repeated violations of

United     States       law.       The    court     concluded    that      Gutierrez’s

“pattern     of     being        deported     and      returning,        deported      and

returning, deported and returning, and with almost every one of

these    returns        there    being    additional    crimes      on   the    criminal

history,” warranted a 30-month upward variance.

      Gutierrez claims that the district court’s reasoning does

not     justify     a     76-month       sentence.       He   contends         that    the

Guidelines already account for his criminal history, and that

the upward variance therefore double-counted his past crimes.

We cannot agree.            Gutierrez illegally returned to the United

States six times.          Although the Guidelines accounted for some of

his criminal history, he was, as he concedes, deported several

times    without        facing    criminal    charges.        The    district         court

reasonably        could     conclude      that    30    additional        months      were

necessary to deter Gutierrez from reentering and violating the

law again.        The court acted within its discretion in sentencing




                                            12
Gutierrez   to   78   months’   imprisonment;   the   sentence    was   not

substantively unreasonable. *



                                   IV.

     For these reasons, the judgment of the district court is



                                                                 AFFIRMED.




     *
       Gutierrez also claims that the district court erred by
failing to provide him with advance notice of its intent to vary
upwards from the PSR’s recommended Guidelines range.         But
Gutierrez concedes that Irizarry v. United States, 553 U.S. 708,
716 (2008), forecloses this argument.


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