United States v. German Mendoza , 439 F. App'x 263 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5249
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GERMAN CHANG MENDOZA, a/k/a Doloteo Arrollo Blanco,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:09-cr-00250-WO-1)
Submitted: June 30, 2011 Decided: July 18, 2011
Before MOTZ and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Louis C. Allen III, Federal Public Defender, Mireille P. Clough,
Assistant Federal Public Defender, Winston-Salem, North
Carolina, for Appellant. Ripley Rand, United States Attorney,
Graham T. Green, Assistant United States Attorney, Winston-
Salem, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to the terms of his written plea agreement,
German Chang Mendoza pleaded guilty to interfering with commerce
by robbery, in violation of 18 U.S.C. § 1951(a) (2006) (“Count
One”), and brandishing a firearm during and in relation to a
crime of violence, to wit: robbery, in violation of 18 U.S.C.
§ 924(c)(1)(A)(ii) (2006) (“Count Two”). The district court
sentenced Mendoza to a total of 132 months’ imprisonment,
consisting of forty-eight months on Count One and eighty-four
months on Count Two, to be served consecutively. In determining
the sentence for Count One, the district court varied upward
from the high end of Mendoza’s sentencing range under the
advisory Sentencing Guidelines by eleven months.
On appeal, Mendoza challenges only the substantive
reasonableness of this upward variance. We have reviewed the
record and discern no abuse of discretion in the district
court’s sentencing decision. Accordingly, we affirm.
This court reviews 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.
Savillon-Matute, 636 F.3d 119, 122 (4th Cir. 2011). Ordinarily,
this review requires appellate consideration of both the
procedural and substantive reasonableness of a sentence. Gall,
552 U.S. at 51. However, because Mendoza “does not challenge
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the procedural reasonableness of his sentence” (Appellant’s Br.
at 8 n.1), we need only consider whether Mendoza’s sentence is
substantively reasonable.
When reviewing the substantive reasonableness of a
sentence, this court assesses “whether the District Judge abused
his discretion in determining that the [18 U.S.C.] § 3553(a)
[(2006)] factors supported [the sentence] and justified a
substantial deviation from the Guidelines range.” Gall, 552
U.S. at 56. The court “must ‘take into account the totality of
the circumstances, including the extent of any variance from the
Guidelines range.’” United States v. Morace, 594 F.3d 340, 346
(4th Cir.) (quoting Gall, 552 U.S. at 51), cert. denied, 131 S.
Ct. 307 (2010). When the district court exercises its
discretion and varies from the defendant’s advisory Guidelines
range, it must explain its reasons for doing so. United States
v. Diosdado-Star, 630 F.3d 359, 365 (4th Cir.), cert. denied, __
S. Ct. __, 2011 WL 1671037 (U.S. May 31, 2011) (No. 10-10257).
Although the district court “must ensure that its justification
supports ‘the degree of the variance,’” it need not make “a
finding of ‘extraordinary’ circumstances” in order to impose a
sentence outside the defendant’s Guidelines range. United
States v. Evans, 526 F.3d 155, 161 (4th Cir. 2008) (quoting
Gall, 552 U.S. at 47).
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Mendoza contends that his variance sentence is
substantively unreasonable because it is greater than necessary
to achieve the statutory aims of sentencing and because the
district court failed to appropriately weigh those 18 U.S.C.
§ 3553(a) factors that supported his request for a within-
Guidelines sentence. We disagree.
In explaining its reasons for the upward variance in
Count One, the district court identified several § 3553(a)
factors that supported its decision. Specifically, the court
cited Mendoza’s obstructionist conduct, which included providing
a false name and date of birth to the police and minimizing the
seriousness of the offense, and Mendoza’s leadership role in the
robbery, as relevant to 18 U.S.C. § 3553(a)(1) — the nature and
circumstances of the offense — and found these factors were
unaccounted for in the Guidelines calculation for Count One.
The court further opined that the robbery was “very violent,” in
that Mendoza had pointed his firearm at a shop clerk’s head, see
18 U.S.C. § 3553(a)(2)(A) (sentence should reflect the
seriousness of the offense), and that this too was not accounted
for in the Guidelines calculation. Finally, the court addressed
Mendoza’s personal history and characteristics, noting that it
was sympathetic to Mendoza’s lack of a stable family environment
and his substance abuse problems. The court ultimately
concluded, however, that the danger Mendoza posed to the
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community — evidenced by the fact that, despite his relatively
young age (twenty-five), Mendoza had a history of using aliases,
two convictions for driving while impaired, and a prior
conviction for assault with a deadly weapon — trumped any
leniency that these factors might otherwise support. Thus, the
court opined that an upward variance was necessary to protect
the public from any further crime Mendoza may commit. See 18
U.S.C. § 3553(a)(2)(C). We thus conclude the district court’s
well-reasoned explanation amply justified the extent of the
variance it imposed.
Because there was no abuse of discretion in the
district court’s reasoning in this case, we will defer to it.
See Diosdado–Star, 630 F.3d at 366–67 (holding sentencing
court’s decision to impose a sentence six years longer than
advisory Guidelines range was reasonable, because district court
employed § 3553–based reasoning to justify the variance); see
also United States v. Jeffrey, 631 F.3d 669, 679 (4th Cir.)
(“[D]istrict courts have extremely broad discretion when
determining the weight to be given each of the § 3553(a)
factors.”), petition for cert. filed, __ U.S.L.W. __ (U.S. June
2, 2011) (No. 10-10894). We therefore affirm Mendoza’s
sentence. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
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before the court and argument would not aid the decisional
process.
AFFIRMED
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