United States v. Juan Deras-Lovo , 541 F. App'x 267 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4102
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JUAN JOSE DERAS-LOVO, a/k/a Richard Chacon Melgar, a/k/a
Juan Jose Lovo, a/k/a Jaun Jose Lovo, a/k/a Juan Jose
Lovo-Deras, a/k/a Juan Richard Chacon Melgar,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema,
District Judge. (1:12-cr-00375-LMB-1)
Submitted: September 20, 2013 Decided: October 2, 2013
Before WILKINSON and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Joshua Paulson,
Assistant Federal Public Defender, Caroline S. Platt, Appellate
Attorney, Alexandria, Virginia, for Appellant. Julia K.
Martinez, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Juan Jose Deras-Lovo appeals from his conviction and
twenty-four month sentence, entered pursuant to his guilty plea
to illegal reentry after being deported subsequent to an
aggravated felony. On appeal, counsel has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967),
concluding that there are no meritorious issues for appeal, but
questioning whether the sentence is procedurally and
substantively reasonable. Neither Deras-Lovo nor the Government
has filed a brief. We affirm.
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 first 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. United States v. Allen, 491
F.3d 178, 193 (4th Cir. 2007); see Rita v. United States, 551
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U.S. 338, 346-56 (2007) (upholding presumption of reasonableness
for within-Guidelines sentence).
Counsel first questions whether the district court
provided an adequate explanation for Deras-Lovo’s sentence. The
district court properly calculated the advisory Guidelines
range, responded to the parties’ arguments, and sufficiently
explained the chosen sentence. See United States v. Carter, 564
F.3d 325, 330 (4th Cir. 2009) (district court must conduct
individualized assessment based on the particular facts of each
case, whether sentence is above, below, or within the Guidelines
range). The court recognized Deras-Lovo’s main argument that
the United States was the only home he had ever known when
granting him a departure for cultural assimilation. In
addition, the court explicitly noted that it declined to give a
variance sentence based upon Deras-Lovo’s repeated criminal
behavior and the fact that he paid no heed to his prior
deportation. We conclude that there was no error in the
district court’s explanation of the given sentence.
If we find a sentence procedurally reasonable, we also
must examine the substantive reasonableness of the sentence
given the totality of the circumstances. United States v.
Strieper, 666 F.3d 288, 295 (4th Cir. 2012). A sentencing court
must “impose a sentence sufficient, but not greater than
necessary, to comply with the purposes set forth in
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[§ 3553(a)(2)].” 18 U.S.C. § 3553(a). Even if we would reach a
different sentencing result, this fact alone is insufficient to
justify reversal of the district court. United States v.
Pauley, 511 F.3d 468, 474 (4th Cir. 2007) (internal quotation
marks omitted).
Here, counsel avers that Deras-Lovo’s sentence was
substantively unreasonable because the illegal reentry guideline
is fundamentally flawed. First, Deras-Lovo contends that his
sentence was unreasonably high due to his marijuana conviction
being used both to increase his offense level and to calculate
his criminal history score. He also avers that his marijuana
conviction is not as serious as other crimes that would trigger
the twelve-level increase. As such, Deras-Lovo concludes that
the twelve-level increase in his offense level resulted in a
Guidelines range which exceeded that which was necessary to do
justice in his case.
However, we have held that use of a prior conviction
to increase both the offense level and criminal history is
permissible for the offense of reentry by an alien after a
felony conviction. United States v. Crawford, 18 F.3d 1173,
1179 (4th Cir. 1994) (holding it is not impermissible double
counting to treat prior felony as a specific offense
characteristic under U.S. Sentencing Guidelines Manual
§ 2L1.2(b) (2012) and to count it in calculating criminal
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history, where prior offense accounted for six of twelve
criminal history points and sixteen-level enhancement).
Further, there was no substantive error in correctly calculating
the offense level based upon Deras-Lovo’s marijuana conviction.
See United States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir.
2006) (finding that, even in light of significant sentencing
disparities, failure to impose below-Guidelines sentence was not
substantively unreasonable given totality of the circumstances).
Next, Deras-Lovo contends that his sentence was
substantively unreasonable because it was longer than necessary
to deter him, as his longest prior sentence was only twelve
months. We conclude that the district court did not abuse its
discretion. Deras-Lovo illegally reentered the United States
almost immediately after being deported. Thus, it was
reasonable to believe that a substantially longer sentence was
necessary to deter him from reentering again. Moreover, the
district court did not base its sentence entirely on deterrence,
as it also noted the nature and circumstances of Deras-Lovo’s
offense and his criminal history. See 18 U.S.C. § 3553.
Finally, Deras-Lovo asserts that his sentence was
substantively unreasonable because the district court’s reliance
on USSG § 2L1.2 was erroneous. Specifically, Deras-Lovo
contends that a sentence based upon § 2L1.2 is not entitled to a
presumption of reasonableness in this court because the
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deportation enhancement is not based on empirical data as
required by Kimbrough v. United States, 552 U.S. 85, 110 (2007)
(holding that district court may vary from the Guidelines based
on policy disagreements). The Kimbrough opinion, however, did
not require district courts to consider the presence or absence
of empirical data underlying the Guidelines, see United
States v. Rivera-Santana, 668 F.3d 95, 101-02 (4th Cir.), cert.
denied, 133 S. Ct. 274 (2012), nor did it permit appellate
courts to discard the presumption of reasonableness for
sentences “based on non-empirically grounded Guidelines.”
United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th
Cir. 2009).
Here, while the district court did not explicitly
address Deras-Lovo’s Kimbrough argument, * the court considered
his criminal history, his current crime, and his lack of ties to
El Salvador and found that, while a departure was warranted for
cultural assimilation, a within-Guidelines range sentence was
appropriate. The fact that the relevant Guidelines are not
“empirically-based” does not provide a basis to second guess the
district court’s conclusion that a Guidelines sentence was
*
This argument was raised in Deras-Lovo’s motion for a
departure based on cultural assimilation, which was granted,
although not to the extent sought by Deras-Lovo. Deras-Lovo did
not reargue this issue at the sentencing hearing when seeking a
variance sentence.
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appropriate. See Mondragon-Santiago, 564 F.3d at 367.
Therefore, we hold that the district court did not abuse its
discretion when it relied on USSG § 2L1.2.
Pursuant to Anders, we have examined the record for
any meritorious issue and have found none. Accordingly, we
affirm Deras-Lovo’s conviction and sentence. This court
requires that counsel inform Deras-Lovo in writing of his right
to petition the Supreme Court of the United States for further
review. If Deras-Lovo requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then
counsel may move this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Deras-Lovo. 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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