                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 08-5151


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

SEVERINO LOYA-SANDOVAL, a/k/a Seferino Sandoval-Loya, a/k/a
Sevarino Loya,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.   N. Carlton Tilley,
Jr., Senior District Judge. (1:08-cr-00071-NCT-1)


Submitted:   May 28, 2010                 Decided:   June 18, 2010


Before WILKINSON, GREGORY, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Benjamin Porter, MORROW ALEXANDER PORTER & WHITLEY, PLLC,
Winston-Salem, North Carolina, for Appellant.         Anna Mills
Wagoner, United States Attorney, Randall S. Galyon, Assistant
United   States  Attorney,   Aindrea  Alderson,   Third-Year Law
Student, Winston-Salem, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Severino Loya-Sandoval pled guilty to illegal reentry

of a deported alien after conviction of an aggravated felony, 8

U.S.C. § 1326(a), (b)(2) (2006), and was sentenced to a term of

eighty-six     months    imprisonment.        Loya-Sandoval        appeals      his

sentence, arguing that the district court abused its discretion

by departing from criminal history category IV to category VI

under U.S. Sentencing Guidelines Manual § 4A1.3(a), p.s. (2008),

and also in departing upward by two offense levels on the ground

that    Loya-Sandoval    reentered     for    a    criminal       purpose,      USSG

§ 5K2.9, p.s.     We affirm.

             Loya-Sandoval was convicted of heroin trafficking in

1992, sentenced to 180 days imprisonment, and deported.                    He was

deported again in 1997 after a conviction for felony possession

of cocaine.     Loya-Sandoval was arrested in October 2006 during a

state drug investigation in North Carolina.                The charge against

him    was   dismissed   when   his   co-defendant,        who    had   initially

implicated him, recanted and refused to testify against him.

After    Loya-Sandoval’s    guilty    plea    to       unlawful    reentry,     his

recommended advisory guideline range was 37-46 months.                     At his

sentencing    hearing,    the   government    presented      evidence      of   his

involvement     in   cocaine    trafficking       in    October    2006.        The

district     court   departed    upward,     finding       first    that     Loya-

Sandoval’s criminal history score did not adequately reflect his

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past criminal conduct.                  The court determined the extent of the

departure by first noting that Loya-Sandoval did not receive any

criminal          history       points    for     his       1992     sentence     for    heroin

trafficking. *           The court also assessed one hypothetical criminal

history      point       for    each     of    Loya-Sandoval’s           two   prior    illegal

reentries, for which he had not been prosecuted.                                An additional

four       points       would    have     given       Loya-Sandoval        a    total    of     13

criminal history points and placed him in category VI.                                         The

court       therefore       departed      upward       to     category     VI    pursuant       to

§ 4A1.3.          The court found that category V was inadequate.

                  The court also determined that there was compelling

evidence that Loya-Sandoval was involved in a drug offense when

he was arrested in October 2006.                        The court departed upward by

four offense levels pursuant to USSG § 5K2.0 to account for the

fact       that       Loya-Sandoval      had    reentered          the   country    “for       the

purpose of facilitating drug activity.”                            The new guideline range

that resulted from the departures was 77-96 months.

                  A   sentence     is    reviewed       for    reasonableness          under    an

abuse of discretion standard.                     Gall v. United States, 552 U.S.

38, 51 (2007).              This review requires consideration of both the

procedural and substantive reasonableness of a sentence.                                   Id.;

       *
        The 180-day sentence was outside the applicable time
period.   USSG § 4A1.2(e)(3).  Otherwise, two points would have
been awarded. USSG § 4A1.1(b).



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see also United States v. Lynn, 592 F.3d 572, 575 (4th Cir.

2010).

            Loya-Sandoval argues that the district court’s sealed

statement of reasons states erroneously that he had two prior

uncounted drug convictions.             He is correct that only one of his

prior    drug     sentences     was    uncounted.           However,     the      court’s

written statement of reasons does not accurately reflect its

basis for the criminal history departure, which consisted of one

old, uncounted prior sentence for serious criminal conduct, see

USSG § 4A1.2, cmt. n.8 (court “may consider [such] information

in determining whether an upward departure is warranted under

§ 4A1.3”), and two instances of “deportation violation” where

Loya-Sandoval      unlawfully        reentered       the    country    after      he     was

convicted    of    a   crime    and    deported.           Loya-Sandoval         does    not

dispute that “prior similar adult conduct not resulting in a

criminal conviction” is an approved basis for departure.                                 See

USSG § 4A1.3(a)(2)(E).           When there is a conflict between the

orally pronounced sentence and the written judgment, the oral

sentence controls.           United States v. Osborne, 345 F.3d 281, 283

n.1 (4th Cir. 2003) (citing United States v. Morse, 344 F.2d 27,

29 n.1 (4th Cir. 1965)).             In this case, the court’s valid orally

stated reason for the departure also controls.

            Loya-Sandoval        further         contends     that    his    1992       drug

sentence    should     not    have    been       considered    because      it    was    the

                                             4
basis     for        the     12-level       enhancement          he     received         under

§ 2L1.2(b)(1)(B), and thus had already been taken into account

in the determination of his guideline range.                           The 1992 sentence

did not contribute to Loya-Sandoval’s criminal history score,

however.       Therefore, the district court did not err in deciding

that category IV did not adequately reflect the seriousness of

his criminal history.

               Loya-Sandoval maintains that the evidence presented by

the   government        at   sentencing      did    not    establish         a    connection

between    his       illegal   reentry      and    his    involvement        in    the    drug

activity for which he was arrested in October 2006.                                 However,

the district court noted that, each time Loya-Sandoval returned

after being deported, he was apprehended because he committed a

crime, usually involving drugs.                   Although Loya-Sandoval did not

receive    a    conviction      for     a   drug    offense       after      each    of   his

unlawful reentries, we are satisfied that the district court’s

description of Loya-Sandoval’s pattern of deportation, illegal

reentry,       and     continued      involvement         with        drug   activity      is

adequately supported by the record.                      Moreover, the government’s

evidence of Loya-Sandoval’s involvement with drug trafficking in

October 2006 was compelling.

               We conclude that Loya-Sandoval has not shown that the

district court’s decision to depart lacked a sufficient factual

basis or was based on a misapplication of § 4A1.3.                                We further

                                             5
conclude   that   the    sentence    is   otherwise   reasonable.      We

therefore affirm the sentence imposed by the district court.          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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