US v. Diosdado-Star: Diosdado-Star was deported in 2002 because he entered the country illegally. He was back within a month, using an alias that matched that of a Border Patrol agent who was under investigation for misconduct. The investigation led to Diosdado-Star, who was discovered to be posing as a Border Patrol agent to others seeking to remain in the country illegally. In the process, Diosdado-Star made about $177,000. When his home was searched, he admitted being a citizen of Mexico, the illegally reentering the US, and to impersonating an agent. As a result, Diosdado-Star was convicted of illegal reentry and possessing a counterfeit resident alien card. Although his advisory Guideline range was only four to 10 months, the district court varied and imposed a sentence of 84 months in prison.
Diosdado-Star appealed his sentence, which the Fourth Circuit affirmed. He first argued that the sentence was procedurally unreasonable, because the district court failed to consider a Guideline departure before imposing a variance sentence. The court disagreed, holding 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." However, in a footnote, the court "offer[ed] no comment on the observation of several other circuit courts of appeal that the departure provisions of the Guidelines are obsolete." Diosdado-Star also argued that the sentence was substantively unreasonable. The court disagreed, holding that the district court's variance "while substantial, [] does not constitute an abuse of discretion based on the totality of the circumstances."
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