United States v. Yonel Vasallo , 518 F. App'x 147 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4302
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
YONEL REYES VASALLO, a/k/a Yoni, a/k/a Cuba,
Defendant - Appellant.
No. 12-4443
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MICHAEL ANTHONY HOY, a/k/a Chi-Town,
Defendant - Appellant.
Appeals from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:11-cr-00253-TDS-10; 1:11-cr-00375-TDS-1;
1:11-CR-00253-TDS-8)
Submitted: March 29, 2013 Decided: April 9, 2013
Before MOTZ and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Ferris Ridgely Bond, BOND & NORMAN, Washington, D.C.; Matthew G.
Kaiser, THE KAISER LAW FIRM PLLC, Washington, D.C., for
Appellants. Ripley Rand, United States Attorney, Sandra J.
Hairston, Deputy Chief, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Michael Anthony Hoy and Yonel Reyes Vasallo pleaded
guilty to conspiracy to distribute cocaine and marijuana, in
violation of 21 U.S.C. § 846 (2006). Vasallo also pleaded
guilty to traveling in interstate commerce to facilitate
distribution of marijuana, in violation of 18 U.S.C.
§ 1952(a)(3) (2006). The district court sentenced Hoy to sixty-
four months of imprisonment and sentenced Vasallo to ninety-five
months of imprisonment, and they both appeal. For the reasons
that follow, we affirm.
Hoy first argues on appeal that the district court
failed to adequately consider his sentencing argument regarding
his community service. We review a sentence for reasonableness,
applying an abuse of discretion standard. Gall v. United
States, 552 U.S. 38, 51 (2007); see also United States v.
Layton, 564 F.3d 330, 335 (4th Cir. 2009). In so doing, we
examine the sentence for “significant procedural error,”
including “failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing
to consider the [18 U.S.C.] § 3553(a) [(2006)] factors,
selecting a sentence based on clearly erroneous facts, or
failing to adequately explain the chosen sentence.” Gall, 552
U.S. at 51. We presume on appeal that a sentence within a
properly calculated advisory Guidelines range is reasonable.
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United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007); see
Rita v. United States, 551 U.S. 338, 346-56 (2007) (upholding
presumption of reasonableness for within-Guidelines sentence).
“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)
(internal quotation marks, alterations, and citation omitted).
Moreover, where the parties present “nonfrivolous reasons for
imposing a different sentence than that” imposed, “a district
judge should address the part[ies’] arguments and explain why he
has rejected those arguments.” Id. (internal quotation marks
and citation omitted). We have thoroughly reviewed the record
and conclude that the district court adequately explained the
sentence and responded to the parties’ sentencing arguments.
Hoy next argues that the court erred in imposing
special conditions of supervised release, including that he
provide his probation officer with requested financial
information and refrain from incurring new credit without his
probation officer’s approval. As Hoy failed to object to these
conditions before the district court, we review this issue for
plain error. See United States v. Olano, 507 U.S. 725, 731-32
(1993). To meet this standard, Hoy must demonstrate that there
was error, that was plain, and that affected his substantial
rights. Id. at 731. Moreover, even if Hoy demonstrates plain
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error occurred, this court will not exercise discretion to
correct the error “unless the error seriously affect[s] the
fairness, integrity or public reputation of judicial
proceedings.” Id. at 732 (internal quotation marks and citation
omitted).
“A sentencing court may impose any condition that is
reasonably related to the relevant statutory sentencing
factors,” including the nature and circumstances of the offense,
the history and characteristics of the defendant, the need for
deterrence and protecting the public from future crimes, and
providing the defendant with training or treatment. United
States v. Worley, 685 F.3d 404, 407 (4th Cir. 2012); see 18
U.S.C. § 3553(a). While “[a] particular restriction does not
require an offense-specific nexus, . . . the sentencing court
must adequately explain its decision and its reasons for
imposing it.” Id. (internal quotation marks and citations
omitted). After reviewing the record and the relevant legal
authorities, we conclude that the district court did not plainly
err in imposing these special conditions of supervised release.
Vasallo argues on appeal that the district court
plainly erred in applying a two-level enhancement under the
Guidelines for use of a special skill based on his use of a
commercial truck driving license to commit the offense. As
Vasallo failed to object to the Guidelines calculations below,
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we review this issue for plain error. See United States v.
Brack, 651 F.3d 388, 392 (4th Cir. 2011). Under USSG § 3B1.3,
if the defendant used a special skill “in a manner that
significantly facilitated the commission or concealment of the
offense,” a court shall increase the offense level by two
levels. The “central purpose of § 3B1.3 is to penalize
defendants who take advantage of a position that provides them
with the freedom to commit a difficult-to-detect wrong.” Brack,
651 F.3d at 393 (internal quotation marks and citation omitted).
We have reviewed the relevant legal authorities and conclude
that Vasallo has failed to demonstrate that the district court
plainly erred in applying the enhancement. See Brack, 651 F.3d
at 392 (“An error is ‘plain’ when it is ‘obvious or clear under
current law.’”) (citation omitted).
Vasallo next argues that the district court erred in
failing to consider the disparities between defendants sentenced
in districts with fast-track sentencing programs for drug
offenses and those without such programs. In United States v.
Perez-Pena, 453 F.3d 236, 244 (4th Cir. 2006), however, we found
that such disparities are not “unwarranted disparities.” See 18
U.S.C. § 3553(a)(6). Therefore, we conclude that Vasallo’s
argument is without merit.
Finally, Vasallo argues that his sentence is
substantively unreasonable. The district court sentenced
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Vasallo within the advisory Guidelines range and we therefore
apply a presumption of reasonableness to that sentence. We
conclude that Vasallo has failed to overcome that presumption.
Accordingly, we affirm the judgments of the district
court. 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 in the decisional
process.
AFFIRMED
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