United States v. Luis Guzmanvilla ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4602
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LUIS GUZMANVILLA, a/k/a Benito,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
District Judge. (1:00-cr-00174-JAB-4)
Submitted: February 12, 2013 Decided: March 4, 2013
Before NIEMEYER, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.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,
Angela H. Miller, Assistant United States Attorney, Greensboro,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Luis Guzmanvilla, a native and citizen of Mexico,
appeals the six-month sentence he received after the district
court revoked his supervised release. The district court
ordered this sentence to run consecutive to the fifty-month
sentence it imposed in United States v. Guzman-Villa, No. 1:12-
cr-00044-JAB-1 (M.D.N.C.), in which Guzmanvilla pled guilty to
illegally reentering the United States after having been removed
as an aggravated felon, in violation of 8 U.S.C. § 1326(a),
(b)(2) (2006). Both the substantive charge and the supervised
release violation were predicated on Guzmanvilla’s illegal
reentry, and both sentences were imposed in the same proceeding.
In this appeal, Guzmanvilla asserts that running the
six-month revocation sentence consecutive to the fifty-month
sentence renders the revocation sentence plainly substantively
unreasonable. We disagree.
The district court has broad discretion in selecting
the sentence to impose upon revoking a defendant’s supervised
release. United States v. Thompson, 595 F.3d 544, 547 (4th Cir.
2010). This court will affirm a sentence imposed after
revocation of supervised release if it is within the governing
statutory range and not plainly unreasonable. United States v.
Crudup, 461 F.3d 433, 437-40 (4th Cir. 2006). “When reviewing
whether a revocation sentence is plainly unreasonable, we must
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first determine whether it is unreasonable at all.” Thompson,
595 F.3d at 546; see United States v. Moulden, 478 F.3d 652, 656
(4th Cir. 2007).
A sentence is procedurally reasonable if the district
court has considered the policy statements contained in Chapter
Seven of the Sentencing Guidelines and the applicable 18 U.S.C.
§ 3553(a) (2006) factors, Crudup, 461 F.3d at 440, and has
adequately explained the sentence chosen. * Thompson, 595 F.3d at
547. A sentence is substantively reasonable if the district
court states “a proper basis” for its imposition of a sentence
up to the statutory maximum. Crudup, 461 F.3d at 440. If,
after considering the above, we decide that the sentence is not
unreasonable, we will affirm. Id. at 439. Only if this court
finds the sentence unreasonable must it decide whether it is
“plainly” so. Moulden, 478 F.3d at 657.
We hold that the revocation sentence is not plainly
substantively unreasonable. The term of incarceration ordered
upon revoking Guzmanvilla’s supervised release is separate and
distinct from the sentence imposed on the substantive offense.
The revocation sentence is designed to punish the defendant’s
failure to abide by the terms of his supervised
*
Guzmanvilla does not claim that the district court
committed any procedural error in sentencing him on the
supervised release violation.
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release. Crudup, 461 F.3d at 437-38. Because the Government is
not constitutionally prohibited, by either the Ex Post Facto
Clause or the Double Jeopardy Clause, “from prosecuting and
punishing a defendant for an offense which has formed the basis
for revocation of supervised release,” United States v. Evans,
159 F.3d 908, 913 (4th Cir. 1998), it logically follows that the
court need not account for the sentence the defendant received
in conjunction with that substantive offense when imposing
sentence on the supervised release violation.
Guzmanvilla’s argument also fails as it is contrary
to U.S. Sentencing Guidelines Manual (“USSG”) § 7B1.3(f), p.s.
(2001), which specifically authorizes the sentencing court to
impose consecutive sentences in this precise situation. Counsel
indeed acknowledges this contrary authority. Of course, because
the Chapter 7 policy statements are not binding on the
sentencing court, see Thompson, 595 F.3d at 546-57, the court
would have been free to run the sentences concurrent. But the
court’s deference to this policy statement was more than
proper. Accord United States v. Johnson, 640 F.3d 195, 208 (6th
Cir. 2011) (explaining that, although not binding, the
sentencing court should consider USSG § 7B1.3(f), p.s. in
determining whether to impose consecutive sentences and that
this decision is a matter of discretion).
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After considering the permissible sentencing factors
and defense counsel’s arguments in mitigation, the district
court stated a proper basis for the within-policy-statement
range sentence it imposed in this case. See Crudup, 461 F.3d at
440. We therefore conclude that the revocation sentence is
substantively reasonable and affirm the revocation judgment. 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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