United States v. Jonathan Bustos-Anica ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4194
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JONATHAN VICTORINO BUSTOS-ANICA, a/k/a Jonathan Victorino
Bustos Anica, a/k/a Jonathan Victorino Bustos, a/k/a
Jonathan Victorino-Bustos, a/k/a Jonathan Victorino-
Bustogania, a/k/a Jonathan Victorino-Agustos,
Defendant - Appellant.
No. 16-4198
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JONATHAN VICTORINO BUSTOS-ANICA, a/k/a Jonathan Victorino
Bustos, a/k/a Jonathan Anica-Bustos,
Defendant - Appellant.
Appeals from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley,
Jr., Senior District Judge. (1:15-cr-00308-NCT-1; 1:14-cr-
00324-NCT-1)
Submitted: September 22, 2016 Decided: October 13, 2016
Before KING and AGEE, Circuit Judges, and DAVIS, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, Mireille P. Clough,
Assistant Federal Public Defender, Winston-Salem, North
Carolina, for Appellant. Ripley Rand, United States Attorney,
Lisa B. Boggs, Assistant United States Attorney, Greensboro,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Jonathan Victorino Bustos-Anica, a native and citizen of
Mexico, pled guilty in October 2015 to illegal reentry after
removal and deportation, in violation of 8 U.S.C. § 1326(a)
(2012). Based on a total offense level of 10 and a criminal
history category of III, Bustos-Anica’s advisory Sentencing
Guidelines range was 10 to 16 months’ imprisonment.
In February 2016, a petition to revoke Bustos-Anica’s
supervised release (imposed in a prior § 1326 proceeding) was
filed, based on his violation of a condition that he remain
outside the United States during his term of supervision.
Bustos-Anica admitted the violation, as evidenced by his guilty
plea in October 2015. The relevant advisory policy statement
range, based on a Grade B violation, was 6 to 12 months’
imprisonment.
The district court consolidated the two cases for
sentencing and imposed a 16-month sentence on the substantive
offense of illegal reentry and a 12-month sentence on the
revocation of supervised release, to run consecutively, for a
total term of 28 months’ imprisonment. Bustos-Anica appeals,
arguing, first, that his revocation sentence is plainly
unreasonable because the district court imposed the sentence to
run consecutively to, rather than concurrently with, the
sentence imposed on the substantive offense. We review
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sentences imposed upon revocation of supervised release to
determine whether they “fall[] outside the statutory maximum” or
are otherwise “plainly unreasonable.” United States v. Padgett,
788 F.3d 370, 373 (4th Cir.) (internal quotation marks omitted),
cert. denied, 136 S. Ct. 494 (2015). We must “first decide
whether the sentence is unreasonable[,] . . . follow[ing]
generally the procedural and substantive considerations that we
employ in our review of original sentences.” United States v.
Crudup, 461 F.3d 433, 438 (4th Cir. 2006). In analyzing a
revocation sentence, we apply “a more ‘deferential appellate
posture concerning issues of fact and the exercise of
discretion’ than reasonableness review for [G]uidelines
sentences.” United States v. Moulden, 478 F.3d 652, 656 (4th
Cir. 2007) (internal quotation marks omitted). “Only if a
revocation sentence is unreasonable must we assess whether it is
plainly so.” Padgett, 788 F.3d at 373.
A revocation sentence is procedurally reasonable if the
district court considered the policy statements in Chapter Seven
of the U.S. Sentencing Guidelines Manual and the applicable 18
U.S.C. § 3553(a) (2012) factors. Id.; see 18 U.S.C. § 3583(e)
(2012). The court must provide an adequate statement of reasons
for the revocation sentence it imposes, but this statement need
not be as specific or as detailed as that required in imposing
an original sentence. United States v. Thompson, 595 F.3d 544,
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547 (4th Cir. 2010). A revocation sentence is substantively
reasonable if the court stated a proper basis for concluding
that the defendant should receive the sentence imposed. Crudup,
461 F.3d at 440.
Here, the record establishes that the district court
committed no procedural or substantive error in imposing the 12-
month revocation sentence. The court considered the Chapter
Seven policy statements and the relevant § 3553(a) factors —
noting the number of Bustos-Anica’s prior deportations — and
imposed a sentence within the policy statement range. Although
Bustos-Anica argues that the court should have imposed the
sentence to run concurrently with the sentence on the underlying
offense, he concedes that the Guidelines instruct courts to
impose sentences to run consecutively to any sentence the
defendant is currently serving. See USSG § 7B1.3(f), p.s.
(2015) (providing that “[a]ny term of imprisonment imposed upon
the revocation of . . . supervised release shall be ordered to
be served consecutively to any sentence of imprisonment that the
defendant is serving”).
Second, Bustos-Anica argues that the total sentence is
unreasonable because it is greater than necessary to achieve the
sentencing objectives of the Guidelines. We review a sentence
for reasonableness “under a deferential abuse-of-discretion
standard.” Gall v. United States, 552 U.S. 38, 41 (2007). This
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review entails appellate consideration of both the procedural
and substantive reasonableness of the sentence. Id. at 51. 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)
factors, and sufficiently explained the selected sentence. Id.
at 49-51. If the sentence is free of significant procedural
error, we review it for substantive reasonableness, “tak[ing]
into account the totality of the circumstances.” Id. at 51.
“When rendering a sentence, the district court must make an
individualized assessment based on the facts presented,” United
States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (emphasis
and internal quotation marks omitted), and “must adequately
explain the chosen sentence to allow for meaningful appellate
review and to promote the perception of fair sentencing.” Gall,
552 U.S. at 50. An extensive explanation is not required as
long as we are satisfied “‘that [the district court] has
considered the parties’ arguments and has a reasoned basis for
exercising [its] own legal decisionmaking authority.’” United
States v. Engle, 592 F.3d 495, 500 (4th Cir. 2010) (quoting Rita
v. United States, 551 U.S. 338, 356 (2007)).
Here, the district court properly calculated the advisory
Guidelines range, heard argument of counsel, and provided an
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adequate explanation for the sentence imposed, specifically
noting the number of Bustos-Anica’s prior removals and
deportations. Considered in the context of the entire
sentencing hearing, we conclude that the district court’s
explanation is sufficient to satisfy us that it “‘considered the
parties’ arguments and ha[d] a reasoned basis for exercising
[its] own legal decisionmaking authority.’” United States v.
Boulware, 604 F.3d 832, 837 (4th Cir. 2010) (quoting Rita, 551
U.S. at 356).
Accordingly, we affirm Bustos-Anica’s sentence. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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