United States v. Asael Gomez-Jimenez , 625 F. App'x 602 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4572
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ASAEL GOMEZ-JIMENEZ, a/k/a Luis Aguilar-Sierra,
Defendant - Appellant.
No. 14-4696
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTHONY WAYNE WIGGINS,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever, III,
Chief District Judge. (5:12-cr-00274-D-2; 5:12-cr-00274-D-1)
Submitted: August 20, 2015 Decided: September 29, 2015
Before GREGORY and HARRIS, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Sean P. Vitrano, VITRANO LAW OFFICES, PLLC, Wake Forest, North
Carolina; Seth A. Neyhart, STARK LAW GROUP, PLLC, Chapel Hill,
North Carolina, for Appellants. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Phillip A. Rubin, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Asael Gomez-Jimenez appeals his 324-month sentence pursuant
to a guilty plea to possession with intent to distribute cocaine
(Count 8) and eluding examination and inspection by immigration
officers (Count 10), and a jury verdict for conspiracy to
distribute and possess with intent to distribute 5 kilograms or
more of cocaine (Count 1) and distribution of cocaine (Count 5).
His co-conspirator, Anthony Wiggins, appeals his jury
convictions and resulting life sentence for conspiracy to
distribute and possess with intent to distribute 5 kilograms or
more of cocaine (Count 1), possession with intent to distribute
28 grams or more of cocaine base (Count 6), and possession of a
firearm by a convicted felon (Count 7). On appeal, they both
challenge their respective sentences as procedurally and
substantively unreasonable. Wiggins additionally argues that
the district court erred in denying his motion to suppress.
Their appeals have been consolidated. We affirm.
We first address Wiggins’ appeal of the district court’s
denial of his motion to suppress. We review factual findings
underlying a district court’s denial of a motion to suppress for
clear error and legal conclusions de novo. United States v.
Hill, 776 F.3d 243, 247 (4th Cir. 2015). We construe the
evidence in the light most favorable to the Government, the
party prevailing below. United States v. Farrior, 535 F.3d 210,
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217 (4th Cir. 2008). The Government bears the burden of proof
in justifying a warrantless search or seizure. United States v.
Watson, 703 F.3d 684, 689 (4th Cir. 2013).
The Fourth Amendment does not prohibit all searches and
seizures, merely those found to be unreasonable. Florida v.
Jimeno, 500 U.S. 248, 250 (1991). A warrantless search “is per
se unreasonable subject only to a few specifically established
and well-delineated exceptions,” one of which is “a search that
is conducted pursuant to consent.” Schneckloth v. Bustamonte,
412 U.S. 218, 219 (1973) (internal quotation marks, alterations
and citations omitted). Such consent may be given by the owner
of the property, or by a third-party possessing “common
authority over or other sufficient relationship to the premises
or effects” to be searched. United States v. Matlock, 415 U.S.
164, 171 (1974). Common authority is based upon the parties’
mutual use of and access to the property, such that it is
reasonable to recognize that each party “has the right to permit
the inspection in his own right and that the others have assumed
the risk that one of their number might permit the common area
to be searched.” Id. at 171 n.7. Moreover, even if the
consenting party does not have common authority over the
property sought to be searched, a search will still be upheld
where an officer reasonably believes in the existence of such
authority. See Illinois v. Rodriguez, 497 U.S. 177, 186 (1990).
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Having reviewed the record with the parties’ arguments in mind,
we conclude that the court did not err in concluding that the
officers reasonably believed that Wiggins’ girlfriend had
authority to consent to a search of the residence, even if she
lacked actual authority. Accordingly, we affirm the denial of
Wiggins’ motion to suppress.
We review the reasonableness of Wiggins’ and Gomez-
Jimenez’s sentences for abuse of discretion. United States v.
Howard, 773 F.3d 519, 527-28 (4th Cir. 2014). We first review
for procedural error, such as improper calculation of the
Guidelines range, failure to consider the 18 U.S.C. § 3553(a)
(2012) sentencing factors, selecting a sentence based on clearly
erroneous facts, or failure to adequately explain the sentence.
Howard, 773 F.3d at 528. Absent any procedural error, we
examine substantive reasonableness of the sentence under the
totality of the circumstances. Id. Sentences within or below a
properly calculated Guidelines range are presumed reasonable,
and this presumption “can only be rebutted by showing that the
sentence is unreasonable when measured against the 18 U.S.C.
§ 3553(a) factors.” United States v. Louthian, 756 F.3d 295,
306 (4th Cir.), cert. denied, 135 S. Ct. 421 (2014).
Because of Wiggins’ prior felony drug offenses, his
statutory mandatory minimum sentence on Count 1 was life
imprisonment. Citing Wiggins’ “long criminal history” and “lack
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of respect for the law,” the district sentenced Wiggins to life
imprisonment on Counts 1 and 6, and 120 months on Count 7.
Relying on Alleyne v. United States, 133 S. Ct. 2151
(2013), Wiggins argues that the district court violated his
Fifth and Sixth Amendment rights by enhancing his sentence on
the basis of prior convictions that were neither alleged in the
indictment nor proven beyond a reasonable doubt. Contrary to
Wiggins’ assertions, there was no error, plain or otherwise, in
the district court’s imposition of the enhanced penalty. See
United States v. Higgs, 353 F.3d 281, 324 (4th Cir. 2003)
(reviewing for plain error a constitutional claim raised for the
first time on appeal).
In Alleyne, the Supreme Court held that the Sixth Amendment
requires a jury to find beyond a reasonable doubt any facts that
increase a defendant’s mandatory minimum sentence. Alleyne, 133
S. Ct. at 2163-64. The Alleyne Court recognized, and expressly
declined to reconsider, however, a narrow exception that allows
a judge to find that a defendant’s prior conviction occurred.
Id. at 2160 n.1 (citing Almendarez-Torres v. United States, 523
U.S. 224 (1998)). “Almendarez-Torres remains good law, and
[this court] may not disregard it unless and until the Supreme
Court holds to the contrary.” United States v. McDowell, 745
F.3d 115, 124 (4th Cir. 2014), cert. denied, 135 S. Ct. 942
(2015). Accordingly, this argument is unavailing.
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Wiggins also asserts that the district court miscalculated
his Guidelines range on Count 6. According to Wiggins, his
Guidelines range was 235 to 293 months. Because Wiggins failed
to object below, this claim too is reviewed for plain error.
See United States v. Olano, 507 U.S. 725, 731-32 (1993) (stating
standard for plain error review). Contrary to Wiggins’
assertions, the probation officer correctly grouped the three
counts for Sentencing Guidelines purposes. The resulting
Guidelines range was life imprisonment because, even though
Wiggins’ offense level and criminal history category generated a
range of 235 to 293 months, the statutory mandatory minimum
sentence on Count 1, life imprisonment, was greater than the
maximum of the applicable Guidelines range. See U.S. Sentencing
Guidelines Manual § 5G1.2(b) (2013).
Wiggins also suggests that the district court cut short his
right to allocute at sentencing. A defendant has a due process
right to address the court if he expresses a desire to do so.
Green v. United States, 365 U.S. 301, 304 (1961); Ashe v. North
Carolina, 586 F.2d 334, 336 (4th Cir. 1978); Fed. R. Crim. P.
32(i)(4)(ii) (right to allocution in federal cases). Allocution
is the right to present a statement in mitigation of sentencing.
United States v. Carter, 355 F.3d 920, 926 (6th Cir. 2004); Fed.
R. Crim. P. 32(i)(4)(ii). However, that right is not unlimited.
Ashe, 586 F.2d at 336-37. Allocution “may be limited both as to
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duration and as to content. [The defendant] need be given no
more than a reasonable time; he need not be heard on
irrelevancies or repetitions.” Id. at 337.
Here, Wiggins was given an opportunity to speak prior to
the imposition of his sentence. However, when it became
apparent that Wiggins wished to argue the issue of guilt or
innocence, rather than in mitigation of his sentence, the court
intervened. Even so, the court permitted Wiggins to continue
again with his allocution. Having reviewed the transcript, we
conclude that Wiggins was not denied the right to allocute.
Last, Wiggins challenges the substantive reasonableness of
his sentence, primarily arguing that a life sentence was greater
than necessary. However, a statutorily mandated sentence, which
Wiggins received, is per se reasonable. Farrior, 535 F.3d at
224. In light of the above, we affirm Wiggins’ convictions and
sentence.
Gomez-Jimenez was sentenced within his advisory Guidelines
range to 324 months’ imprisonment. Defense counsel moved for a
variant sentence of 180 months based on Gomez-Jimenez’s lack of
criminal history, his newly acquired faith in prison, advanced
age upon release, impending deportation, and family
responsibilities. The Government sought a sentence at the top
of the Guidelines range.
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In rendering a sentence, the district court stated that it
had considered all of the parties’ arguments, the advisory
Guidelines range, and the various § 3553(a) factors. Noting
Gomez-Jimenez played a “critical role” in the organization and
that he was “committed to being a drug dealer,” the court
stressed that “specific deterrence and general deterrence are
critical here in light of the serious nature of the conduct, the
entire record, [and that Gomez-Jimenez] deserve[s] a very
serious punishment.”
Gomez-Jimenez first argues that the district court failed
to explain why it rejected his non-frivolous arguments for a
lesser sentence, thus rendering his sentence procedurally
unreasonable. The district court stated that it had considered
the arguments proffered on Gomez-Jimenez’s behalf for a lesser
sentence. The court noted, however, that Gomez-Jimenez was
involved in very serious drug offenses, and that he chose to
continue his drug activities even after his brothers pled guilty
to drug offenses. Although the court observed that Gomez-
Jimenez may have done “a little honest work,” it noted that he
“certainly spent the bulk of [his] time as a drug dealer.” The
court further stated that his possible religious conversion in
prison was not mitigating. The court also explained that it did
not find Gomez-Jimenez’s proposed downward variance to 180
months-or a sentence at the bottom of the Guidelines range-to be
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“remotely appropriate.” We conclude that the district court
sufficiently explained why it did not find Gomez-Jimenez’s
arguments in mitigation compelling.
Gomez-Jimenez also contends that his sentence was
substantively unreasonable, arguing that his lack of criminal
history and his low risk of recidivism warranted a lesser
sentence. In a related argument, he maintains that the district
court gave too much weight to general deterrence, making his
sentence greater than necessary to punish and deter him.
The burden rests with the defendant to rebut the
presumption of reasonableness by demonstrating “that the
sentence is unreasonable when measured against the § 3553(a)
factors.” United States v. Montes-Pineda, 445 F.3d 375, 379
(4th Cir. 2006) (internal quotation marks omitted). In Gomez-
Jimenez’s case, the district court thoroughly considered his
circumstances and history, and found that deterrence mandated
the chosen sentence. The court’s explanation for its chosen
sentence was thorough and well-reasoned. Simply stated, the
court implicitly found that the severity of Gomez-Jimenez’s
crimes and his critical role in the drug-trafficking
organization outweighed his lack of prior convictions.
Furthermore, Gomez-Jimenez’s assertion that he had a low risk of
recidivism was undermined by his continuing involvement in the
drug trade even after his family members received lengthy
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sentences. Gomez-Jimenez has simply failed to rebut the
presumption of reasonableness accorded his within-Guidelines
sentence.
Accordingly, we affirm the criminal judgments. 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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