United States v. Orlando Loza , 580 F. App'x 229 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4966
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ORLANDO GONZALEZ LOZA,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:10-cr-00085-MR-DLH-1)
Submitted: July 28, 2014 Decided: August 1, 2014
Before DUNCAN and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Ross Hall Richardson, Executive Director, Joshua B. Carpenter,
FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville,
North Carolina, for Appellant. Amy Elizabeth Ray, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Orlando Gonzalez Loza appeals from the fifty-seven
month sentence imposed by the district court following his
guilty plea to illegal reentry of a deported alien, in violation
of 8 U.S.C. §§ 1326(a), (b)(2) (2012). Loza’s counsel has filed
a brief pursuant to Anders v. California, 386 U.S. 738 (1967),
concluding there are no meritorious grounds for appeal but
questioning whether the district court committed procedural
error in calculating Loza’s criminal history score and whether
the district court abused its discretion by not giving Loza
credit for time served on his state sentence. Loza was notified
of his right to file a supplemental pro se brief but has not
done so. We affirm.
We review a sentence for reasonableness, applying “a
deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 41 (2007). The court “first ensur[es] that
the district court committed no significant procedural error,
such as failing to [properly] calculate . . . the Guidelines
range, . . . failing to consider the § 3553(a) factors, . . . or
failing to adequately explain the chosen sentence.” Id. at 51.
If the Court finds the sentence procedurally reasonable, it also
must examine the substantive reasonableness of the sentence,
considering “the totality of the circumstances.” Id. We apply
a presumption of reasonableness to a sentence within the
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properly calculated Guidelines range. United States v.
Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006).
First, Loza argues that the district court improperly
assessed three criminal history points for his state drug
conviction for which he was serving time when he was federally
indicted. Specifically, Loza argues that, because his state
drug trafficking offenses occurred during the commission of the
illegal reentry, they are relevant conduct under U.S. Sentencing
Guidelines Manual § 1B1.3(a)(1)(A) (USSG) (2012), and therefore
could not be assessed criminal history points pursuant to USSG
§ 4A1.2(a)(1). Prior offenses are part of the same course of
conduct if “they are sufficiently connected or related to each
other as to warrant the conclusion that they are part of a
single episode, spree, or ongoing series of offenses.” United
States v. Hodge, 354 F.3d 305, 313 (4th Cir. 2004) (quoting USSG
§ 1B1.3 cmt. n.9(B)). Factors to be considered “include the
degree of similarity of the offenses, the regularity
(repetitions) of the offenses, and the time interval between the
offenses.” Id. (quoting USSG § 1B1.3 cmt. n.9(B)). We conclude
that Loza’s state conviction for felony cocaine trafficking is
not relevant conduct as to his illegal reentry because the two
crimes are materially different and they were not part of a
common scheme or plan.
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Loza correctly observes that illegal reentry is an
ongoing crime that begins upon entry and continues until the
alien’s discovery by authorities. See United States v.
Ruelas-Arreguin, 219 F.3d 1056, 1061 (9th Cir. 2000). However,
contrary to Loza’s argument, his commission of the state drug
crime while he was committing the illegal reentry does not make
the drug crime relevant conduct. See United States v.
Cruz-Gramajo, 570 F.3d 1162, 1167 (9th Cir. 2009) (holding that
Ҥ 4A1.2 does not preclude the district court from assigning
criminal history points for sentences received after an illegal
entry, but before an alien is found by immigration
authorities”); United States v. Vargas-Garcia, 434 F.3d 345,
349-52 (5th Cir. 2005) (holding that the continuing nature of an
illegal reentry offense does not prevent the district court from
including other sentences in criminal history). Accordingly, we
conclude that the district court did not err in assessing Loza
three criminal history points for his state drug conviction.
Loza next argues that the district court abused its
discretion by failing to give him credit, in the form of a
downward departure or variance on his federal sentence, for time
served in state custody. Specifically, Loza argues that, had
the Government turned him over to federal court before the
expiration of his state sentence, the district court could have
imposed his sentences to run concurrently.
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Under USSG § 5G1.3(c), in any case involving an
undischarged term of imprisonment, “the sentence for the instant
offense may be imposed to run concurrently, partially
concurrently, or consecutively to the prior undischarged term of
imprisonment to achieve a reasonable punishment for the instant
offense.” Subsection (c) does not, however, authorize a
downward departure for the instant offense for a period of
imprisonment already served on the undischarged term of
imprisonment. See USSG § 5C1.3 (cmt. n.3(E).
We conclude that the district court did not abuse its
discretion in declining to give Loza credit for time served on
the state sentence. While it is true that, if Loza had been
sentenced for the current offense while he was incarcerated on
the state charges, the district court could have run the federal
sentence concurrent with the state sentence, any suggestion that
the court would have done so in this case is mere speculation.
In fact, the district court here made it clear that Loza did not
deserve a discount on his federal sentence for his unrelated
state sentence.
In accordance with Anders, we have reviewed the entire
record and have found no meritorious grounds for appeal. We
therefore affirm the district court’s judgment. This court
requires that counsel inform Loza, in writing, of the right to
petition the Supreme Court of the United States for further
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review. If Loza requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel
may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Loza.
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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